Edmund Robinson: Re Allister and the entrenchment ‘road not taken’: A rejoinder to Kacper Majewski

Kacper Majewski has written an excellent, thought-provoking, piece on the subject of constitutional statutes, in light of the Re Allister UK Supreme Court ruling. The UKSC may, he argues, have effectively rendered the ‘constitutional statute’ concept ‘legally redundant’. 

This may be correct, and there is certainly support for that position within the decision, but it is important to complete the account with some broader contextual matters – and when we do so, we find good reason to hesitate.

Constitutional statutes, implied repeal, and the Allister decision

The potential significance of the ‘constitutional statute’ concept is as an exception to the doctrine of implied repeal. That doctrine provides that a later statute will normally be held to repeal an earlier statute, to the extent of any conflict between them. According to Thoburn, an earlier ‘constitutional statute’ will be immune from such implied repeal; it can only be repealed by express words or ‘words so specific that the inference of an actual determination to effect the result contended for [is] irresistible’. 

Majewski argues that, in Allister, there was no scope for implied repeal because the conflict – between the relevant substantive provisions of the Act of Union with Ireland 1800, and of the European Union (Withdrawal) Act 2018 (EUWA) – was resolved by a conflict-resolution provision in the EUWA [s.7A(3)]. It made any other enactment, whenever passed, ‘subject to’ the substantive provision of the EUWA at issue in the case [s.7A(2)]. That subordinating effect of s.7A(3) resolved the conflict between s.7A(2) and the Act of Union, and in the resulting absence of conflict there was no trigger for implied repeal. In the absence of any potential implied repeal, it did not matter whether the Act of Union was a constitutional statute protected from such repeal, explaining why the UKSC considered that question ‘academic’.

Majewski’s reliance on conflict-resolution provisions is framed in terms which reach far beyond the facts of Allister, however, and indeed beyond the doctrine of constitutional statutes. It suggests that, when considering the interaction of statutes with seemingly conflicting substantive provisions, a ‘second order’ rule in one statute (such as that incorporated in s.7A(3), regulating conflicts with other statutes), generally does not itself conflict with the ‘first order’ substantive rules contained in the other statute. It seems that the ‘second order’ rule then simply takes effect on its own terms, giving primacy to whichever ‘first order’ rule it purports to confer it upon, resolving the conflict. 

It is not entirely clear that this argument would render the concept of constitutional statutes legally redundant, since in principle a situation could arise where a later statute conflicts with an earlier ‘constitutional’ statute and neither statute contains a conflict-resolution provision. There are also possibilities, outlined by Feldman ((2013) 129 Law Quarterly Review 343), for useful work which the concept of ‘constitutional statutes’ might perform outside the implied repeal context. However the focus of this piece is the treatment of conflict-resolution provisions, since this is where Majewski’s argument is most radical.

The limits on entrenchment

The radicalism lies not in the upholding of a conflict-resolution provision in a later statute, in the face of an earlier statute, as was at issue in Allister – but for the ‘constitutional statute’ argument, that would be uncontroversial. It is in the open-ended rationale for applying such provisions, which Majewski considers applies equally where the provision is in an earlier statute and is relied on to override a later one, effectively ‘entrenching’ the provisions of the former against implied repeal by the latter.  

That position is radical because the common law rules of statutory interpretation were not, previously, understood as permitting conflict-resolution provisions in an earlier statute to prevent the doctrine of implied repeal from operating in favour of a later statute.  ‘The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal’, as the Court of Appeal held in Ellen Street Estates v Minister of Health. It is true that in such a case the ‘second order’ rule in the earlier statute, purporting to exclude implied repeal, does not itself directly conflict with a ‘first order’ substantive rule in the later statute. However that does not answer the question of whether and to what extent the former should be given its purported effect. The Ellen Street rule is that it should not. Although that position has evidently since been qualified by one or more exceptions, if Majewski’s reading is correct, his argument as to the redundance of the constitutional statutes exception rests on the deletion of a significant part of the rule (against implied repeal) to which it relates.

If this is indeed correct then, as Majewski observes, we can revisit the specific context which the ‘constitutional statute’ concept was initially deployed to resolve. In the Factortame cases the conflict-resolution provision in the European Communities Act (ECA) was considered to be capable of overriding the later Merchant Shipping Act, apparently contrary to the Ellen Street Estates rule. Indeed Lord Bridge’s reasoning across the first and second Factortamecases appeared to adopt an analysis close to Majewski’s argument, as Sir William Wade observed: ‘Is it now’ he asked ‘to be possible at any time, and to any extent, for Parliament to signify its “voluntary acceptance” of limitations on its successors’ sovereignty in the manner stated by Lord Bridge?’ ((1996) 112 Law Quarterly Review 568). Although it was not in doubt that Parliament could expressly repeal the ECA, as it ultimately did, the restriction on its ability to pass conflicting legislation without expressly addressing the conflict was a constraint on its legislative power. 

Thoburn offered a limited alternative to the unrestrained ‘voluntary acceptance of limitations’ possibility, justifying Factortame by reference to the ECA’s ‘constitutional’ status. Majewski, on the other hand, takes us back to the original crossroads, choosing the formal criterion (conflict-resolution wording in the earlier statute) over the available alternatives (such as the constitutional status of the earlier statute) to explain the decision in Factortame.

Allister: endorsing the liberal approach to entrenchment?

There is, as Majewski notes, seemingly clear support for his liberal approach to entrenchment in the language of Allister, specifically in the assertion that the ‘answer to any conflict between the Protocol and any other enactment whenever passed or made is that those other enactments are to be read and have effect subject to the rights and obligations which are to be recognised and available in domestic law by virtue of section 7A(2)’ (emphasis added). By expressing s.7A(3)’s effectiveness as against future statutes, the Court seems to abandon the Ellen Street Estates position.

There are a few reasons for caution, however. Firstly, the comment is of course obiter insofar as it refers to future statutes, since they were not at issue in Allister. Secondly, it does not address at all the prior authority suggesting that the implied repeal doctrine precludes such an outcome. While the Thoburn articulation of the ‘constitutional statutes’ exception was also obiter, the longstanding Court of Appeal rejection of entrenchment against implied repeal in Ellen Street Estates was not. Thirdly, it offers no substantive reasons for such an outcome, other than the preceding assertion that ‘Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme’. While that position could justify permitting statutory entrenchment against implied repeal, it can also justify the opposite approach (as in Ellen Street Estates) – it begs the question, that is, of whether the earlier or later Parliament’s legislation is the more ‘supreme’, and to what extent. Clearly expressed reasoning, including detailed consideration of the conditions (if any) required to effect entrenchment, should have been included if the Court’s intention in Allister was indeed an overhaul of the position which has been taken in the past. 

In the absence of such discussion, Allister’s heavy focus on the ‘express’ wording of s. 7A(3) and its assertion that the arguably ‘constitutional’ status of the statutes at issue was academic seems more apt simply to suggest a low threshold for protecting constitutional statutes against implied repeal than to suggest abolition of the concept, or (a fortiori) of the Ellen Street Estates rule itself. The doctrine of implied repeal itself provides some support to the conclusion that s.7A(3) was clear enough – given that provision was intended to apply (inter alia) to past statutes, had it only been intended to apply to those which were not ‘constitutional’, it would in that respect have added little to what the doctrine of implied repeal could have been relied on to achieve.

None of this is to argue that the Ellen Street Estates rule remains in full force. It is evident that exceptions do now exist, whether by reference to the ‘constitutional’ status of certain statutes or otherwise. The time may be right for proper discussion of whether the rule should continue to exist, and (if it should) what the exceptions should be: the Brown report raises these questions again, as Gordon and Sandro have observed. The obiter comments in Allistermay serve as a helpful catalyst for that discussion, as Majewski’s contribution demonstrates. 

However my one concluding observation on possible change would be to recall the most common answer given by the undergraduates whom I supervised last year, to the question of whether this country should have a written constitution: in essence, ‘not now’. A time of deep polarisation could be a dangerous one in which to seek the consensus desirable for agreeing a new constitution. Rather similarly, the present populist moment does not seem the most auspicious for the courts to change common law statutory interpretation principles to implement a new, unrestrained, power for Parliament to protect any legislation it may choose to against implied future repeal. There may be good reasons for affording protection in some circumstances, but a more cautious approach would be better, and in any event a more careful articulation than Allister’s is essential.

I am indebted to Paul Scott and Michael Gordon for their comments on a previous draft; any errors remain my own. 

Dr Edmund Robinson is a researcher and educator specialising in Constitutional, International and Human Rights Law.

(Suggested citation: E. Robinson, ‘Re Allister and the entrenchment ‘road not taken’: A rejoinder to Kacper Majewski’, U.K. Const. L. Blog (1st March 2023) (available at https://ukconstitutionallaw.org/))