Tuesday, 12 July 2011

Constitutional statutes

The UK does not have a codified constitution, but certain statutes have been singled out over the years as possessing a special constitutional importance or status (the most famous being the iconic statute - or quasi-statute - known as Magna Carta).

Blackstone included a section in his Commentaries on "[t]he absolute rights of every Englishman", which he identified as being set out in a series of historical statutes from Magna Carta to the 18th century:
At some times we have seen [our rights] depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy.... But... as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.

First, by the great charter of liberties, which was obtained, sword in hand, from king John; and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son.... Afterwards by the statute called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law.... Next by a multitude of subsequent corroborating statutes, (Sir Edward Coke, I think, reckons thirty two,) from the first Edward to Henry the fourth. Then, after a long interval, by the petition of right.... Which was closely followed by the still more ample concessions made by [Charles I] to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the Second. To these succeeded the bill of rights.... Lastly, these liberties we again asserted at the commencement of the present century, in the act of settlement....  [underlining added]
In our own time, Lord Justice Laws famously held in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) that there exists a special class of "constitutional statutes" which are not subject to implied repeal by other Acts of Parliament:
In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.... The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the [Human Rights Act 1998], the Scotland Act 1998 and the Government of Wales Act 1998. The [European Communities Act 1972] clearly belongs in this family.... [underlining added]
Finally, the parliamentary Joint Committee on the draft Civil Contingencies Bill observed in its First Report in November 2003 that "the fundamental parts of constitutional law could be taken to include the following statutes:
Magna Carta 1297
Bill of Rights 1688
Crown and Parliament Recognition Act 1689
Act of Settlement 1700
Union with Scotland Act 1707
Union with Ireland Act 1800
Parliament Acts 1911-49
Life Peerages Act 1958
Emergency Powers Act 1964
European Communities Act 1972
House of Commons Disqualification Act 1975
Ministerial and Other Salaries Act 1975
British Nationality Act 1981
Supreme Court Act 1981 [now renamed the Senior Courts Act 1981]
Representation of the People Act 1983
Government of Wales Act 1998
Human Rights Act 1998
Northern Ireland Act 1998
Scotland Act 1998
House of Lords Act 1999
Civil Contingencies Act [2004]"
Putting these three lists together, we may suggest that the UK's constitutional statutes include (but are not confined to) the following:
Magna Carta
Bill of Rights 1689
Act of Settlement 1700
Act of Union 1707
European Communities Act 1972
Human Rights Act 1998
Government of Wales Acts 1998 and 2006
Scotland Act 1998 

Note (26 October 2011)

My attention has been drawn to Lord Bingham's speech in Robinson v Secretary of State for Northern Ireland 2002 WL 1446153, in which he described the Northern Ireland Act 1998 as being "in effect a constitution" for Northern Ireland.  The Northern Ireland Act should therefore probably be added to the list above.