Article Index

The authority of the Bill of Rights (and therefore the principles from Magna Carta which it was based upon) has been confirmed by the Courts since 2001. Here are two examples.


The “Metric Martyr” judgment (Neutral Citation Number: [2002] EWHC 195 (Admin)) identified our constitutional statutes

“62. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute...”.

Note that in this Judgement the terms “Statutes” is used. Peace treaties such as Magna Carta and the Declaration of Rights are contracts between The Sovereign and the people as will be described below.

It is necessary for Parliament to pass Acts to give treaties the force of statute law. Repeal of those Acts, in whole or in part and by implication or otherwise, may constitute breaches of the parent treaty. This was the nature of the grievances that were put to the Barons Committee in 2000.

It is because The Sovereign is a member of the House of Lords that that institution is entitled to pass Judgement on Her.


The effect of the Bill of Rights was confirmed by the Supreme Court in 2017. Note that the authority of that institution is inconsistent with the law of the Constitution. The final Court of appeal was traditionally the House of Lords.

By the Common Law there is a maxim that “No man may sit in judgement of his own cause”. For that reason, neither of those institutions has the authority to settle a dispute between them. That is the reason why our wise ancestors relied on a “Constitutional Convention” as the final arbiter in the event of a dispute.

Nevertheless, here is the “Brexit” Judgement (Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 (24 January 2017):

“Para 44. In the early 17th century Case of Proclamations (1610) 12 Co Rep 74, Sir
Edward Coke CJ said that “the King by his proclamation or other ways cannot
change any part of the common law, or statute law, or the customs of the realm”.
Although this statement may have been controversial at the time, it had become
firmly established by the end of that century. In England and Wales, the Bill of
Rights 1688 confirmed that “the pretended power of suspending of laws or the
execution of laws by regall authority without consent of Parlyament is illegall” and
that “the pretended power of dispensing with laws or the execution of laws by regall
authoritie as it hath beene assumed and exercised of late is illegall”...”.

http://www.bailii.org/uk/cases/UKSC/2017/5.html


The entry on the citation of the Bill of Rights in the 2010 edition of Halsbury’s Laws of England says this:

Halsbury's Laws of England/CONSTITUTIONAL LAW AND HUMAN RIGHTS (VOLUME 8(2) (REISSUE))/1. INTRODUCTION: BASIC PRINCIPLES OF THE CONSTITUTION OF THE UNITED KINGDOM/(7) THE DESCENT OF THE CROWN AND PROVISIONS SECURING THE SUCCESSION/(i) Descent of the Crown/35. Parliament's power to limit descent of the Crown.

35. Parliament's power to limit descent of the Crown.

The Bill of Rights, being thus confirmed by a Parliament summoned in the constitutional manner, was formally credited with the force of a legal statute, and appears upon the statute books as such (see infra). For a full discussion of the logical difficulties involved in the irregular procedure employed see Maitland Constitutional History of England (1908) pp 283-285.

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