Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

Facts

• The case concerned the legal status of the European Communities Act 1972 (ECA) in light of conflicting legislation on units of measurement.
• Steve Thoburn and other appellants argued that the Weights and Measures Act 1985, as amended, had implicitly repealed section 2(2) of the ECA 1972 regarding the primary use of metric units.
• The 1985 Act enabled both imperial and metric units, while 1994 Regulations made under the ECA 1972 required metric units to be primary, making the pound an illegal unit under section 8 of the 1985 Act.
• The appellants claimed that allowing the continued use of the pound demonstrated an implicit repeal of ECA 1972 provisions by the 1985 Act.
• The case focused on whether the 1985 Act's provisions amounted to an implied repeal of the requirements established under the ECA 1972.

Issues

1. Whether the European Communities Act 1972, as a constitutional statute, could be subject to implied repeal by subsequent legislation such as the Weights and Measures Act 1985.
2. Whether a hierarchy exists between ordinary statutes and constitutional statutes in the UK legal system.
3. Whether altering constitutional statutes requires express and unambiguous language by Parliament.

Decision

• Laws LJ introduced a distinction between "ordinary" and "constitutional" statutes in UK law.
• It was held that constitutional statutes, unlike ordinary statutes, are not subject to implied repeal and require express words for amendment or repeal.
• The European Communities Act 1972 was classified as a constitutional statute, and thus could not be impliedly repealed by the 1985 Act.
• The court found that no clear and explicit intention was shown by Parliament to repeal the ECA 1972 provisions, so they continued to have effect.
• The principle of implied repeal applies only to ordinary statutes, not to constitutional statutes.

Legal Principles

• A "constitutional statute" is characterized by its fundamental status within the constitutional framework, governing the relationship between the citizen and the state or the state's structure.
• Statutes identified as constitutional include the Magna Carta, Bill of Rights 1689, Acts of Union 1707, Reform Acts, Human Rights Act 1998, Scotland Act 1998, Government of Wales Act 1998, and European Communities Act 1972.
• Constitutional statutes cannot be impliedly repealed; express and unambiguous legislative language is required for their amendment or repeal.
• The hierarchy of statutes is a doctrine developed by common law, not by Parliament, granting courts a greater role in determining statutory relationships.
• Modifications to the doctrine of parliamentary sovereignty arise from the judicially created requirement of express repeal for constitutional statutes.
• The supremacy of EU law, as held in this judgment, depends on domestic legal acceptance rather than on fundamental European principles.

Conclusion

The judgment in Thoburn v Sunderland City Council established the doctrine of constitutional statutes in UK law, requiring clear and express language for their amendment or repeal and modifying the traditional principle of implied repeal for such laws, significantly influencing the understanding of parliamentary sovereignty and the hierarchy of statutes.