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Thread: Metric Martyrs Appeal Transcript
23-07-08, 12:03 AM #1
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Metric Martyrs Appeal Transcript
Posted for consideration....
37 Mr Shrimpton made much of the doctrine of implied repeal. The rule is that if Parliament has enacted successive statutes which on the true construction of each of them make irreducibly inconsistent provisions, the earlier statute is impliedly repealed by the later. The importance of the rule is, on the traditional view, that if it were otherwise the earlier Parliament might bind the later, and this would be repugnant to the principle of Parliamentary sovereignty.62 Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms  2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State  AC 539, Leech  QB 198, Derbyshire County Council v Times Newspapers Ltd.  AC 534, and Witham  QB 575. And from this a further insight follows. 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.
63 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  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.
64 This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.
Metric Martyrs Judgment in full (very large text file)δxδp≥h/4π
23-07-08, 04:51 AM #2
Re: Metric Martyrs Appeal Transcript
Crumbs, that would shut me right up. I haven't the faintest clue about what is being said, only that I am outof my depth legally speaking.
I intend to print and carry a copy of that use that as a counter argument for when my daughter debates me on her getting a tattoo.
OTOH, maybe she'll use that against me!
23-07-08, 05:15 AM #3
Re: Metric Martyrs Appeal Transcript
Law as a career choice... the fantasy:
KAFFEE: And when it went bad, you cut these guys loose.
ROSS: Your Honor--
RANDOLPH: That'll be all, counsel.
KAFFEE: You had Markinson sign a phony transfer order--
KAFFEE: You doctored the log books.
ROSS: Damnit Kaffee!!
KAFFEE: I'll ask for the forth time. You ordered--
JESSEP: You want answers?
KAFFEE: I think I'm entitled to them.
JESSEP: You want answers?!
KAFFEE: I want the truth.
JESSEP: You can't handle the truth!!!
62 Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which.... etc. ad nauseam in extremis
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