Constitutional Statutes - 20 years on

It is twenty years since the judgment in Thoburn v Sunderland CC [2002] EWHC 195 (Admin) in which Laws LJ first made the claim that there is a category of statutes – constitutional statutes – which are protected from implied repeal. Since then, the idea of constitutional statutes has been recognised by the Supreme Court and by the courts in Northern Ireland and Scotland. They have also been recognised by Parliament, parliamentarians and by members of the executive.

In this paper, I chart the development and increasing recognition of the idea of constitutional statutes from the judgment in Thoburn to the present day. I then question Laws LJ's assertion in Thoburn that only the courts may identify a statute as constitutional and argue that Parliament may also be able to conclusively determine a statute to be protected from implied repeal. I further argue that, if this is correct (that Parliament is able to conclusively determine a statute to be protected from implied repeal), that there is no reason in principle why this might not also apply to statutes which are not constitutional.