“Constitutional statutes” still alive

In R. (Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 W.L.R. 324 (HS2) the Supreme Court has provided a good reason to think that the idea of a hierarchy of statutes within the legal system of the United Kingdom is still alive, despite the fact that some commentators have already heralded its early demise (see e.g. Nicholas Bamforth, “Same-sex partnerships: some comparative constitutional lessons” (2007) E.H.R.L.R. 47 at 48). After the famous passage in Thoburn v Sunderland City Council [2002] EWHC 195; [2003] 1 Q.B. 151 where Laws L.J. introduced the distinction between “constitutional” and “ordinary” statutes (at [62]), there indeed seemed to be some reticence among their Lordships to make use of this distinction and clarify its practical import. Among others, Lord Bingham of Cornhill in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32; [2002] N.I. 390 at [11] and Lord Hope in H. v Lord Advocate [2012] UKSC 24; [2013] 1 A.C. 413 at [30] have suggested a special role for constitutional statutes (respectively, being subject to a special mode of interpretation and being immune from implied repeal), but voices like those still remain isolated. In HS2 Lord Neuberger and Lord Mance appear to have decided to contribute to changing that situation by not only endorsing Laws L.J.’s distinction between two types of statutes (HS2 at [208]), but also by hinting that constitutional statutes and principles may be in some way entrenched against change by later constitutional statutes (at [207])