Most of us will be aware of the famous remarks of Lord Justice Laws in Thoburn v Sunderland City Council (2002) that constitutional statutes are immune from implied repeal, and therefore somewhat entrenched against Parliament. The issue of the entrenchment of the UK constitution against non-sovereign legislatures, such as the devolved legislatures and the European Union, has received relatively less attention.

In this post, I will highlight a purpose other than that of entrenchment for which certain statutes are being characterised as ‘constitutional’. In the following cases, the devolution statutes, namely the Scotland Act 1998, the Northern Ireland Act 1998, the Government of Wales Acts 1998 and 2996, have been so characterised in order to justify the adoption of special interpretive approaches towards these statutes.

At least two broad, and apparently inconsistent, interpretive rules can be seen to be emerging. On the one hand, we have cases which suggest that constitutional statutes, like canonical constitutional codes in other jurisdictions, should be interpreted in a generous and purposive manner. On the other hand, some judges have held that constitutional statutes require literal interpretation, with especial fidelity to the text. Their argument is that Parliament has chosen a precise set of words while being fully cognisant of the constitutional importance of the Bill under consideration. As such, they call for strong judicial deference.

The most famous case adopting the first position is the judgment of the House of Lords in Robinson v Secretary of State for Northern Ireland (2002). The case concerned the validity of the election of the First Minister and his Deputy by the Northern Ireland Assembly two days after a six-week deadline prescribed by the Northern Ireland Act 1998 for such election. A majority in the House of Lords upheld the election as valid. Lord Bingham, speaking for the majority, held that:

The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Acts is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. [11]

He suggested that the purposes of the Northern Ireland constitution included ensuring ‘that there be no governmental vacuum’, attempting ‘to end decades of bloodshed’ and facilitating ‘participation by the unionist and the nationalist communities in shared political institutions … [which] had to have time to operate and take root.’[10] The rationale for the six-week deadline, Lord Hoffmann explained in his concurring opinion, had ‘been to induce a willingness to compromise on the part of the members of the Assembly by the prospect of having to fight a new election.’[28] Giving the requirement of the deadline a rigid interpretation to invalidate the election held after it had passed, he argued, would be contrary to the most fundamental purpose of the Belfast Agreement which the 1998 Act was clearly seeking to implement: ‘namely to create the most favourable constitutional environment for cross-community government.’[30]

Lord Hoffmann’s reliance on the Belfast Agreement is particularly interesting. He justified this reliance by suggesting that the Agreement, along with the political context surrounding it, formed ‘part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States.’[33] In doing so, he borrowed from the interpretive traditions usually applied in the context of short, general and vague constitutional texts, citing the paradigm example of constitutionalism of this variety, namely the United States.

In Imperial Tobacco Limited (2010), Lord Bracadale expressly followed this ‘purposive and generous’ approach in Robinson to hold that ‘The court should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable.’[3]

Similarly, the High Court in R (Governors of Brynmawr Foundation School) v The Welsh Ministers (2011) also cited Robinson to hold that the Government of Wales Acts (1998 and 2006) were constitutional statutes, and therefore ‘in applying the rules of statutory construction in order to determine the scope of the powers conferred on the Welsh Ministers or the Assembly by GOWA 2006, the court will take into account its constitutional status.’[73] Mr Justice Beatson adopted a generous approach and held that ‘Given the constitutional status of GOWA 2006, the court is reluctant to read implied limitations into it by reference to legislation which is not of a “constitutional” nature.’[87]

Apparently endorsing this approach, the Supreme Court said recently in AXA General Insurance v The Lord Advocate (2011) that ‘The carefully chosen language in which [certain provisions of the Scotland Act] are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature.’ [46]

On the other hand, there are cases which, while they agree that a special interpretive approach is warranted for constitutional settlements contained in devolution statutes, adopt an interpretive approach that is quite the opposite of the one just described. Thus, in Mills v HM Advocate (No 2) (2001) the High Court of Justiciary said that

‘There is also, in our view, force in the argument that the particular and detailed provisions dealing with devolution issues are part of the constitutional settlement embodied in the Scotland Act and that requirement should not therefore be avoided or circumvented. If the effect of the provisions is that appeals are open to the Privy Council on matters involving questions of Scots criminal law, that, in our view, must simply be accepted. It does not provide any reason to reject the argument based on the plain terms of the legislation.’ [19]

Soon after Mills, the Privy Council held in “R” v HM Advocate [2002] that ‘The Scotland Act is a major constitutional measure which altered the government of the United Kingdom’.  In this case, Lord Rodger suggested that when Parliament had consciously enacted ‘a constitutional settlement of immense social and political significance’, courts must be especially deferential: they ‘must loyally give effect to the decision of Parliament on this sensitive matter, even if – or perhaps especially if – there are attractions in a different solution’.[155]

Unlike the first set of cases, these two cases suggest that the proper way to interpret constitutional statutes is to do so literally rather than purposively. Indeed, they demand a literal application of even the mundane or ordinary provisions contained in constitutional statutes (after all, not all provisions in a constitutional statute are ‘constitutional’). The rationale seems to be that Parliament has in its wisdom settled these mundane details while being sensitive to the constitutional nature of the overall project. This context implies that the importance of the overall project rubs off to some extent on all provisions contained in a constitutional statute. The room for judicial manoeuvre is small, and a literal interpretation that is warranted. The second set of cases seems to better recognise that UK style constitutional statutes (at least those containing the devolution settlements), although ‘constitutional’, remain statutes. They are drafted differently from canonical constitutional codes, and tend to be very detailed, delving into the minutiae of governmental functioning.

One may think that these two interpretive approaches can be reconciled with each other, inasmuch as they (one may argue), apply to different types of constitutional provisions. On this argument, one could say, that a generous and purposive interpretive approach is appropriate for provisions which are framed in a general and vague language, or which embody broad legal principles normally found in preambles to constitutions and Bills of Rights. On the other hand, a literal approach is best for those constitutional provisions which embody a detailed rule where the scope for indeterminacy is minimal. Such a distinction is surely plausible, except that it cannot be supported on the facts of the cases described above. The provision being interpreted in Robinson was fairly clear, specifying a fixed time period within which the elections of the Ministers was to take place. Indeed, most of the aforementioned cases dealt with relatively precise and detailed provisions in constitutional statutes. Which of these two approaches ultimately finds favour with the courts remains to be seen.

Tarunabh Khaitan is a Fellow in Law, Christ Church, Oxford.