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How does one become so and what are the implications of it becoming so?

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    Do you mean "constitutional" in the sense of "part of the constitution" or "in accordance with the constitution"? Commented May 4, 2022 at 18:17
  • @jbentley has cited a case decision Thoburn V. Sunderland city council but I hadn’t seen the paragraph reference. Commented May 4, 2022 at 19:23
  • Check my answer to this question. Commented May 4, 2022 at 19:33

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Other answers that explain and further elaborate or reference the concept most welcome but I’ve just seen this (Thoburn v Sunderland City Council, paragraph 62):

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 [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] 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.

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  • Could you provide a link to, and/or description of, the source of this quote? Commented May 4, 2022 at 20:12
  • Paragraph 62, thoburn vs. Sunderland city council Commented May 4, 2022 at 21:11
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    IMHO Paragraph 63 gets to the heart of it: "Ordinary statutes may be impliedly repealed." Which is to say, in the ordinary course of things, when two laws are in conflict the latter one is held to supersede the earlier. The court is arguing that laws granting fundamental rights must be explicitly repealed (the principle of Parlimantary sovereignty means that it can modify the consitution, just not 'accidentally').
    – richardb
    Commented May 4, 2022 at 21:58
  • Good point. But this is interesting, that it seems the case that certain statutes get designated as constitutional post facto, by the courts, rather than during passage by Parliament. Isn’t that odd? Commented May 4, 2022 at 23:12
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    @JosephP. Yes it is - but in some ways it is also in keeping with the British constitution, in the sense that the constitution has evolved slowly over time, and is a combination of statute, common law, practices and conventions. Commented May 5, 2022 at 16:01

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