Thoburn V Sunderland City Council - Arguments

Arguments

The appellants argued first that the fact that the kilogram and the pound were recognised as equally legal units - notwithstanding the 1994 modifications - operated as an implied repeal of Section 2(2) of the European Communities Act 1972 in respect of weights and measures regulation. The doctrine of implied repeal means that where provisions of one Act of Parliament are inconsistent or repugnant to the provisions of an earlier Act, the later Act abrogates the inconsistency in the earlier one. In this case, it was argued that by proclaiming the equal status and legality of metric and imperial measures, Parliament had wished to repeal the authorisation contained in the 1972 Act allowing Ministers to adopt secondary legislation in the field of weights and measures in order to comply with EU law. Consequently, the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 and the Units of Measurement Regulations 1994, both adopted on the basis of this authorisation, were now invalid. The Appellants also argued, relying on the persuasive precedent of the Australian High Court case of Goodwin v Phillips (1908), that implied repeal could work pro tanto, that is to say a later Act could carve out an exception to the operation of an earlier without prejudice to its operation in areas unaffected by the later statute. They also argued on the basis of authority from the Court of Appeal and Divisional Court in the 1930s that a consolidation statute could work an implied repeal in the same way as any other Act.

The Appellants' counsel later stated that the Appellants were stopped by the court from arguing that statutes of constitutional signifiance were not immune from implied repeal. He has stated that the concept that some statutes could be semi-entrenched was introduced into the case after argument had been heard.

Dealing with the Factortame litigation the appellants argued that as implied repeal applied in those cases but had not been argued by the Attorney-General they were caught by the Rule in Warner's Case (1661) and were not binding authority.

The second argument concerned the nature of the authorisation contained in the European Communities Act 1972, what is known as a Henry VIII clause delegating to the Executive a power to amend primary and secondary legislation in order to achieve a certain aim. It was argued that the power to modify legislation only extends to legislation passed at the time the authorisation was made, and not future legislation.

The third group of arguments concerned public international law. Basing themselves on the Vienna Convention on the Law of Treaties the appellants argued that (1) the High Contracting Parties to the Treaty of Brussels (by which the United Kingdom joined the European Economic Community) should be fixed with knowledge of the constitutional principle whereby one Parliament could not bind its successors and (2) if the Treaty of Rome had the effect contended for by the respondents the relevant treaty provisions were void for conflict with the over-riding jus cogens principles of the sovereign equality of nations and entitlement to freedom from interference in their internal affairs under the rule whereby treaty provisions in conflict with the jus cogens are void.

For their part, the respondents argued that so long as the United Kingdom is a member of the European Union, the doctrine of Parliamentary sovereignty whereby Parliament is free to create or repeal any law must be disapplied in relation to matters concerning EU law where the principle of supremacy of EU law as expressed in the judgments of the European Court of Justice in Costa v. ENEL and Van Gend en Loos takes precedence.