Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151

Key point

Laws LJ suggested that a hierarchy of ordinary and constitutional statutes, constitutional statutes could only be expressly and not impliedly repealed by Parliament

Facts

  • The Units of Measurements Regulations 1994 was introduced pursuant to Sections 2(2) and (4) of the European Communities Act 1972, which specified that the use of the pound as the primary metric would be deemed illegal under section 8 of the Weight and Measures Act 1985
  • Steve Thoburn and the other appellants argued that the pound and the kilogram were seen to be equally legal units (notwithstanding modifications from 1984) and would thus operate as an implied repeal of Section 2(2) of the ECA 1972

Issue

Did the Weights and Measures Act 1985 impliedly repeal Section 2(2) of the ECA 1972 to bring the law into closer compliance with the obligations under EU law?

Held (Divisional Court)

The court dismissed the appeals and found that the 1985 Act (in its original enactment) did not impliedly repeal Section 2(2) of the ECA 1972 as the ECA is a constitutional statute

Laws LJ

  • Laws LJ suggested that “we should recognise a hierarchy of Acts of Parliament: as if they were “ordinary” statutes and “constitutional” statutes”: [62]
  • The constitutional statutes suggested by Laws LJ include: 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
  • Furthermore, “ordinary statutes may be impliedly repealed. Constitutional statutes may not.”: [63]
  • For the repeal of a Constitutional Act, Laws LJ suggested that “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 …  The ordinary rule of implied repeal does not satisfy this test.”: [63]
  • “1) All the specific rights and obligations which EU law creates are by the ECA incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation. (2) The ECA is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom’s relationship with the EU rests with the domestic, not the European, legal powers.” [69]

Commentary

  • Laws LJ asserted at [69] in point 4 that the ultimate basis of EU law supremacy is in domestic powers; this meant that the Supremacy of EU law is subject to recognition by domestic courts and therefore, domestic courts could at any time choose not to give EU law supremacy – although this is not relevant anymore after the repeal of the ECA
  • This case provided further affirmation of the supremacy of EU Law that has been incorporated into domestic law by virtue of the ECA over all other domestic laws, which had been laid down in Factortame