The quasi-entrenchment of constitutional statutes

Abstract

The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court said that the Scotland Act 1998 cannot be impliedly repealed due to its fundamental constitutional status. Unless judicial thinking changes, courts in the future may treat constitutional statutes, like the Scotland Act, as capable only of express repeal, making such statutes quasi-entrenched. In this article, we argue that, as a judicial innovation, the quasi-entrenchment of constitutional statutes lacks a sound legal basis. Parliament can make its intention to repeal a ..