Thoburn V Sunderland City Council - Judgment

Judgment

Giving his judgment, Lord Justice John Laws accepted that the appellants were correct in arguing that the 1985 Act provided for both the Imperial and metric systems to operate side by side. He also accepted that implied repeal could work pro tanto and that the Australian case relied upon by the appellants correctly stated the law of England. He rejected the respondents' contention that implied repeal did not apply where the later statute was a consolidation statute. He held that the relationship between community and national law had to be judged exclusively by reference to national law.

Laws went on to hold that there was no question of implied repeal as there was no inconsistency between the European Communities Act and the Weights and Measures Act, since there can be no inconsistency between a provision of an Act granting a Henry VIII power and the terms of legislation adopted in application of that power. Furthermore, to say that Henry VIII clauses could only operate vis-a-vis legislation which was already in existence at the time the clause was passed would be to place a limitation on the legislative powers of Parliament and run contrary to the doctrine of Parliamentary sovereignty. Given this primary finding, the Court's observations about how the doctrine of implied repeal might or might not apply to "Constitutional Statutes" were obiter dicta, albeit potentially significant, given the standing of Laws as a leading Public Law Judge. Notwithstanding that, the point has not been subject to much judicial elaboration since the Thoburn case.

In disposing of the second argument Laws took the opportunity to outline a constitutional framework within which the competing and seemingly irreconciliable principles of Parliamentary sovereignty and EU supremacy could be accommodated. He began by stating that the exceptions which the common law had in recent years recognised to the doctrine of implied repeal could be explained as forming part of a new class or category of legislative provisions which cannot be repealed by mere implication. There is, in effect, a hierarchy of Acts of Parliament. He stated:

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 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).

In this category of "constitutional statutes" Laws identified the Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Reform Acts, the Human Rights Act 1998, the Scotland Act 1998, the Government of Wales Act 1998 and the European Communities Act 1972. Such statutes are, because of their constitutional importance, to be protected from implied repeal and, whilst not entrenched in English law, can only be repealed by the express intervention of Parliament. Laws wrote that the question of whether the European Communities Act was affected by implied repeal had already been determined by the House of Lords in Factortame. In that case, the Merchant Shipping Act 1988 had arguably impliedly repealed Section 2(2) of the 1972 Act by authorising a discrimination contrary to Community law, but the Law Lords did not regard the 1988 Act as having had that effect.