Thoburn v Sunderland City Council

Facts

Thoburn, a Sunderland greengrocer, and other traders were convicted under the Weights and Measures Act 1985, as amended, for selling loose goods by imperial units alone, without the metric measure required by regulations. The amendments had been made by regulations under s 2(2) of the European Communities Act 1972, giving effect to a Community directive on units of measurement.

History

The traders were convicted in the magistrates courts of offences under the 1985 Act as amended. They appealed by way of case stated to the Divisional Court.

Issue

Whether the 1985 Act, as a later statute, impliedly repealed the power in s 2(2) of the 1972 Act to amend primary legislation by regulation, and so prevented the regulations from amending the 1985 Act; and what is the status of the 1972 Act and of Community law in relation to later inconsistent statutes.

Held

Appeals dismissed and convictions upheld. The 1972 Act is a constitutional statute which cannot be impliedly repealed, so the power in s 2(2) survived and the amending regulations were valid.

Ratio

• There is a category of constitutional statutes which are not subject to the doctrine of implied repeal; they can be repealed or amended only by express words or by words so specific that the contrary intention of the legislature is plain, and the European Communities Act 1972 is such a statute, so a later ordinary statute did not impliedly repeal its power to amend primary legislation by regulation.

The judgments

Key reasoning

• The traditional doctrine that an earlier Act is impliedly repealed by a later inconsistent one, seen in Ellen Street Estates v Minister of Health [1934] 1 KB 590, remains the rule for ordinary statutes.
• Parliament cannot bind its successors as to the form or content of legislation, but the common law can recognise that certain statutes have a special status, and implied repeal cannot be applied to them because it would impute to Parliament an intention to repeal fundamental provisions without addressing the question.
• The supremacy of Community law in domestic law derives from the 1972 Act as interpreted at common law, as in Factortame (No 2) [1991] 1 AC 603, and is not an independent legal principle that overrides statute.
• Section 2(2) of the 1972 Act authorises regulations to amend primary legislation, and the 1985 Act did not expressly repeal that power, so the regulations were valid and the convictions stood.

Obiter

• Laws LJ suggested that the common law also treats as constitutional statutes such enactments as Magna Carta, the Bill of Rights 1689, the Acts of Union, the Human Rights Act 1998 and the devolution Acts, and that the sovereignty of Parliament is itself a principle of the common law.

Where it fits in the module

The principle of legality topic concerns how the courts protect fundamental principles in interpreting statutes, and Thoburn is the main case on the second-tier protection of constitutional statutes. The topic on whether Parliament can bind its successors concerns the doctrine of implied repeal and its limits. Thoburn offers a middle course between the Diceyan rule that Parliament can change anything by any later Act and the entrenchment of specific statutes, producing a debate on whether judges or Parliament decide what is constitutional.

Criticisms

• The test for a constitutional statute is vague and open-ended, and the judges decide which statutes are covered without a clear criterion or democratic authority.
• Exempting statutes from implied repeal is in tension with the orthodox doctrine that Parliament cannot bind its successors, so the decision involves a quiet re-writing of the rule of parliamentary sovereignty.
• The reasoning attributes the supremacy of European law to the common law and the 1972 Act, which is contested, since the Court of Justice treats supremacy as inherent in the Treaties.
• It requires an express statement for repeal, but Parliament might reasonably regard a clear and specific intention as enough, which creates uncertainty over what counts as the necessary clarity.