Thoburn v Sunderland City Council
Encyclopedia
Thoburn v Sunderland City Council is an important English constitutional law
case. It advances the theory that there exists a hierarchy of Acts of Parliament
, whereby those Acts affecting "the legal relationship between citizen and State" or "fundamental constitutional rights" form a special and superior category known as "constitutional statutes" and can only be expressly repeal
ed or abrogated by Parliament
and therefore immune from the doctrine of implied repeal
. Included within this category is the European Communities Act 1972
.
. Section 1 of the Act provides that both the pound
and the kilogram
are equally legal units of measurement in the United Kingdom.
In 1994 several statutory instrument
s came into force whose effect was to bring the United Kingdom into compliance with Directive 80/181/EEC which aims to harmonise the use in the European Community of units of measurement. The directive does not outlaw imperial measures, but sets a timeframe within which they are to be replaced by metric units.
Amongst the measures introduced, the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 and the Units of Measurement Regulations 1994 are particularly worthy of mention. Without modifying the basic principle in Section 1 of the 1985 Act that the pound and the kilogram enjoyed parity, the Order specified that the use of the pound as a primary indicator of measurement would be illegal after 1 January 2000 and would be a criminal offence under Section 8 of the 1985 Act. The 1994 Regulations permitted the continued display of imperial measures until 2010 so long as the metric equivalent also appeared alongside in larger characters.
The Units of Measures Regulations 1994 was adopted on the basis of Sections 2(2) and (4) of the European Communities Act 1972 which authorises Ministers to pass secondary legislation in order to bring the UK into compliance with its obligations under EU law. This is a so-called Henry VIII clause.
, was convicted at Sunderland
Magistrates Court for using weighing apparatus which did not comply with the 1985 Act. He had been warned on two occasions that his apparatus was illegal. Colin Hunt sold fruit and vegetables in Hackney
, he displayed his prices by reference to imperial measures and was convicted at Thames Magistrates Court in June 2001. Julian Harman, a greengrocer, and John Dove, a fishmonger
, sold their goods by reference to imperial measures only at Camelford
market in Cornwall
, they were both convicted in August 2001 at Bodmin Magistrates Court. Peter Collins sold fruit and vegetables in Sutton
and unlike the other appellants, had not been convicted of an offence. Instead, he was contesting the terms of the market stall licence proposed by the legal authority which required metric measures to be used, Sutton Magistrates Court had rejected his claim.
All five appellants, popularised by the press as the "Metric Martyrs
", contested the decisions against them by way of case stated
before the Divisional Court
of the Queen's Bench Division.
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. They were stopped by the court from arguing that statutes of constitutional signifiance were not immune from implied repeal - the concept that some statutes could be semi-entrenched was only 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 respondent
s 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.
The Respondents conceded through their counsel (now an Advocate-General of the European Court of Justice) that the Factortame cases were not binding, for the reason given by the Appellant, an important point on the doctrine of stare decisis
(Precedent) that had been overlooked in the famous 1944 case of Young v Bristol Aeroplane Company, which purported to give an exhaustive list of the circumstances where a previous case at the same or higher level was not binding.
However he held 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.
In disposing with the second argument Laws LJ took the opportunity to outline a new theoretical 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. As he explained:
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 noted 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 this case, the Merchant Shipping Act 1988
had in effect impliedly repealed Section 2(2) of the 1972 Act by authorising a discrimination contrary to Community law, but the Lords did not recognise this authorisation as operating as such.
Laws LJ failed to deal with the appellants' arguments in public international law.
The hierarchy of statutes proposed by Laws is a novel concept in English law, and runs contrary to the principle of equality according to which all statutes are equally susceptible to implied or express repeal.
Thus established, it is the doctrine of Parliamentary sovereignty which necessarily conditions the relationship between English and EU law - only an Act of Parliament can authorise the incorporation of EU law into the English legal system, and the principle of supremacy of EU law must therefore originate from and be authorised by Parliament - an authorisation which is merely temporary. In fact, as Laws added, even if Parliament wished to subordonate the doctrine of Parliamentary sovereignty to the principle of EU supremacy, it would not be able to do it under the terms of English constitutional law. As he explained: "there is nothing in the [European Communities Act] which allows the Court of Justice
, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it."
, a certificate having been granted by the Divisional Court that the case raised an issue of general application and public importance, but leave to appeal was refused by the House of Lords after an oral hearing on grounds that they did not consider that the appeal would "give rise to points capable of reasonable argument".
After the House of Lords rejected the appeal application, the group appealed to the European Court of Human Rights
on grounds that the judgment in the House of Lords was a breach of Article 6 of the European Convention on Human Rights (fair trial). On 12 February 2004, a committee of three ECHR judges unanimously ruled that the application was inadmissible and it was therefore struck out. The reason for their ruling was:
The lead appellant and original 'metric martyr' Steve Thoburn collapsed and died of a massive heart attack within days of the final rejection of his case by the ECHR.
has thus been compromised. It is important to remember, however, that the repeal of such statutes may not be possible even were it parliament's intention, due to the political cost involved. Crucially, this case, as Birkinshaw notes, brings the concept of a Hierarchy of statutes and rights, a concept unthinkable merely years before in the United Kingdom, to the forefront of administrative debate.
Shortly after judgment was handed down the Public Record Office (FCO 30/1049, 14 June 1971) released the Joint Opinion of the Attorney-General (Sir Peter Rawlinson QC, later Lord Rawlinson of Ewell QC), the Solicitor-General (Sir Geoffrey Howe QC, now Lord Howe of Aberavon QC), the Lord Advocate, Lord Wylie and the Solicitor-General for Scotland, Sir David Brand QC, advising Her Majesty's Government in terms similar to the appellants' argument that in the event of a later statute conflicting with the proposed European Communities Act the later Act would take precedence in accordance with the doctrine of implied repeal. They also advised that the 1972 Act could not be made safe from implied repeal. There is no record of this important advice having been drawn to the attention of the House of Lords in any of the Factortame cases. It is consistent with the advice given to Parliament by the Law Officers and the Lord Chancellor, Lord Hailsham of St. Marylebone, during the debates on the European Communities Bill (the Divisional Court and House of Lords in Thoburn refused to consult the Hansard record).
The Appellants attacked the conduct of the case by Laws LJ, asserting that the failure to draw the attention of counsel to the cases relied on in making the 'constitutional statute' point and the decision not to re-list the case for further argument after the court changed its mind on the point vitiated the fairness of the proceedings (with respect to the court) and breached the United Kingdom's obligations under Article 6 of the European Convention on Human Rights. The application to the European Court of Human Rights was declared inadmissible.
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
case. It advances the theory that there exists a hierarchy of Acts of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
, whereby those Acts affecting "the legal relationship between citizen and State" or "fundamental constitutional rights" form a special and superior category known as "constitutional statutes" and can only be expressly repeal
Repeal
A repeal is the amendment, removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....
ed or abrogated by Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and therefore immune from the doctrine of implied repeal
Implied repeal
The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed...
. Included within this category is the European Communities Act 1972
European Communities Act 1972 (UK)
The European Communities Act 1972 is an Act of the Parliament of the United Kingdom providing for the incorporation of European Community law into the domestic law of the United Kingdom. It is not to be confused with the Irish law of the same name, Act No...
.
Legislative background
The law relating to weights and measures was consolidated in 1985 in the Weights and Measures ActWeights and Measures Act
A Weights and Measures Act is an Act of Parliament determining trade law where the weight or size of the goods being traded are important. For example, if a bottle of milk is for sale and has a label saying it contains one pint, then the law states that it must contain that amount.-United...
. Section 1 of the Act provides that both the pound
Pound (mass)
The pound or pound-mass is a unit of mass used in the Imperial, United States customary and other systems of measurement...
and the kilogram
Kilogram
The kilogram or kilogramme , also known as the kilo, is the base unit of mass in the International System of Units and is defined as being equal to the mass of the International Prototype Kilogram , which is almost exactly equal to the mass of one liter of water...
are equally legal units of measurement in the United Kingdom.
In 1994 several statutory instrument
Statutory Instrument
A Statutory Instrument is the principal form in which delegated or secondary legislation is made in Great Britain.Statutory Instruments are governed by the Statutory Instruments Act 1946. They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.Most delegated...
s came into force whose effect was to bring the United Kingdom into compliance with Directive 80/181/EEC which aims to harmonise the use in the European Community of units of measurement. The directive does not outlaw imperial measures, but sets a timeframe within which they are to be replaced by metric units.
Amongst the measures introduced, the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 and the Units of Measurement Regulations 1994 are particularly worthy of mention. Without modifying the basic principle in Section 1 of the 1985 Act that the pound and the kilogram enjoyed parity, the Order specified that the use of the pound as a primary indicator of measurement would be illegal after 1 January 2000 and would be a criminal offence under Section 8 of the 1985 Act. The 1994 Regulations permitted the continued display of imperial measures until 2010 so long as the metric equivalent also appeared alongside in larger characters.
The Units of Measures Regulations 1994 was adopted on the basis of Sections 2(2) and (4) of the European Communities Act 1972 which authorises Ministers to pass secondary legislation in order to bring the UK into compliance with its obligations under EU law. This is a so-called Henry VIII clause.
Facts
In March 2001, Steve Thoburn, a greengrocerGreengrocer
A greengrocer or fruiterer is a retail trader in fruit and vegetables; that is, in green groceries. Greengrocer is primarily a British and Australian term, and greengrocers' shops were once common in suburbs, towns and villages...
, was convicted at Sunderland
City of Sunderland
The City of Sunderland is a local government district of Tyne and Wear, in North East England, with the status of a city and metropolitan borough...
Magistrates Court for using weighing apparatus which did not comply with the 1985 Act. He had been warned on two occasions that his apparatus was illegal. Colin Hunt sold fruit and vegetables in Hackney
London Borough of Hackney
The London Borough of Hackney is a London borough of North/North East London, and forms part of inner London. The local authority is Hackney London Borough Council....
, he displayed his prices by reference to imperial measures and was convicted at Thames Magistrates Court in June 2001. Julian Harman, a greengrocer, and John Dove, a fishmonger
Fishmonger
A fishmonger is someone who sells fish and seafood...
, sold their goods by reference to imperial measures only at Camelford
Camelford
Camelford is a town and civil parish in north Cornwall, United Kingdom, situated in the River Camel valley northwest of Bodmin Moor. The town is approximately ten miles north of Bodmin and is governed by Camelford Town Council....
market in Cornwall
Cornwall
Cornwall is a unitary authority and ceremonial county of England, within the United Kingdom. It is bordered to the north and west by the Celtic Sea, to the south by the English Channel, and to the east by the county of Devon, over the River Tamar. Cornwall has a population of , and covers an area of...
, they were both convicted in August 2001 at Bodmin Magistrates Court. Peter Collins sold fruit and vegetables in Sutton
Sutton, London
Sutton is a large suburban town in southwest London, England, and the administrative headquarters of the London Borough of Sutton. It is located south-southwest of Charing Cross and is one of the major metropolitan centres identified in the London Plan. The town was connected to central London by...
and unlike the other appellants, had not been convicted of an offence. Instead, he was contesting the terms of the market stall licence proposed by the legal authority which required metric measures to be used, Sutton Magistrates Court had rejected his claim.
All five appellants, popularised by the press as the "Metric Martyrs
Metric Martyrs
The Metric Martyrs are a British advocacy group based in the United Kingdom who campaign for the freedom to choose what units of measurement are presented. The group states that it believes that vendors should have the freedom to mark their goods with any units they choose. This can be solely...
", contested the decisions against them by way of case stated
Case Stated
Case stated is an appeal mechanism, a legal function, available in England and Wales to review a magistrates' court decision on a point of law. It is a statement of facts prepared by one court for the opinion of another on a point of law....
before the Divisional Court
Divisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
of the Queen's Bench Division.
Arguments
The appellants argued firstly that the fact that the kilogram and the pound were recognised as equally legal units - notwithstanding the 1994 modifications - operated as an implied repealImplied repeal
The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed...
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
Persuasive precedent
Persuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case...
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. They were stopped by the court from arguing that statutes of constitutional signifiance were not immune from implied repeal - the concept that some statutes could be semi-entrenched was only 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
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
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
Vienna Convention on the Law of Treaties
The Vienna Convention on the Law of Treaties is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. The VCLT has been ratified by 111 states as of November...
the appellants argued that (1) the High Contracting Parties to the Treaty of Brussels (by which the United Kingdom joined the European Economic Community
European Economic Community
The European Economic Community The European Economic Community (EEC) The European Economic Community (EEC) (also known as the Common Market in the English-speaking world, renamed the European Community (EC) in 1993The information in this article primarily covers the EEC's time as an independent...
) should be fixed with knowledge of the constitutional principle whereby one Parliament could not bind its successors and (2) if the Treaty of Rome
Treaty of Rome
The Treaty of Rome, officially the Treaty establishing the European Economic Community, was an international agreement that led to the founding of the European Economic Community on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany...
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 respondent
Respondent
A respondent is a person who is called upon to issue a response to a communication made by another. In legal usage, this specifically refers to the defendant in a legal proceeding commenced by a petition, or to an appellee, or the opposing party, in an appeal of a decision by an initial fact-finder...
s argued that so long as the United Kingdom is a member of the European Union, the doctrine of Parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
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
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
in Costa v. ENEL
Costa v. ENEL
Flaminio Costa v ENEL [1964] ECR 585 was a landmark decision of the European Court of Justice which established the supremacy of European Union law over the laws of its member states.-Facts:...
and Van Gend en Loos
Van Gend en Loos v. Nederlandse Administratie der Belastingen
NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen was a landmark case of the European Court of Justice which established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which...
takes precedence.
The Respondents conceded through their counsel (now an Advocate-General of the European Court of Justice) that the Factortame cases were not binding, for the reason given by the Appellant, an important point on the doctrine of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
(Precedent) that had been overlooked in the famous 1944 case of Young v Bristol Aeroplane Company, which purported to give an exhaustive list of the circumstances where a previous case at the same or higher level was not binding.
Judgment
Giving his judgment, Lord Justice 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 declined to follow Factortame and held that the relationship between community and national law had to be judged exclusively by reference to national law.However he held 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.
In disposing with the second argument Laws LJ took the opportunity to outline a new theoretical 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. As he explained:
In this category of "constitutional statutes" Laws identified the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, the Bill of Rights 1689
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, the Acts of Union 1707
Acts of Union 1707
The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland - which put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706,...
, the Reform Acts, the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...
, the Government of Wales Act 1998
Government of Wales Act 1998
This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act 1998 This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act 1998...
and the European Communities Act 1972
European Communities Act 1972
European Communities Act 1972 can refer to:*European Communities Act 1972 * 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 noted 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 this case, the Merchant Shipping Act 1988
Merchant Shipping Act 1988
The Merchant Shipping Act 1988 c.12 is an Act of Parliament passed by the Conservative government of Margaret Thatcher. It aimed to prevent foreign fishing fleets from fishing in British territorial waters. In the Factortame case, its provisions were disapplied by the House of Lords when they were...
had in effect impliedly repealed Section 2(2) of the 1972 Act by authorising a discrimination contrary to Community law, but the Lords did not recognise this authorisation as operating as such.
Laws LJ failed to deal with the appellants' arguments in public international law.
The hierarchy of statutes proposed by Laws is a novel concept in English law, and runs contrary to the principle of equality according to which all statutes are equally susceptible to implied or express repeal.
Four propositions of Laws LJ
Having outlined his proposed new constitutional framework, Lord Justice Laws proceeded to apply it to establish the nature of the relationship between EU and English law. In his opinion, the correct analysis of this relationship requires four propositions:-- Specific rights and obligations created by EU law are by virtue of the European Communities Act incorporated into national law and rank supreme over national law. Where there is an inconsistency between an EU law right or obligation and national law, the latter must be modified or abrogated, even where it is contained in an Act of Parliament.
- The European Communities Act is a constitutional statute and, as such, cannot be impliedly repealed.
- The category of constitutional statutes is derived from English law and not EU law.
- The legal basis of the United Kingdom's relationship with the EU rests on national law provisions and not EU law. Where an EU measure was seen to be contrary to a fundamental or constitutional right guaranteed by English law, there would be a question as to whether the European Communities Act was sufficient to incorporate the measure into national law.
Thus established, it is the doctrine of Parliamentary sovereignty which necessarily conditions the relationship between English and EU law - only an Act of Parliament can authorise the incorporation of EU law into the English legal system, and the principle of supremacy of EU law must therefore originate from and be authorised by Parliament - an authorisation which is merely temporary. In fact, as Laws added, even if Parliament wished to subordonate the doctrine of Parliamentary sovereignty to the principle of EU supremacy, it would not be able to do it under the terms of English constitutional law. As he explained: "there is nothing in the [European Communities Act] which allows the Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it."
Appeals
The decision was appealed to the House of LordsHouse of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, a certificate having been granted by the Divisional Court that the case raised an issue of general application and public importance, but leave to appeal was refused by the House of Lords after an oral hearing on grounds that they did not consider that the appeal would "give rise to points capable of reasonable argument".
After the House of Lords rejected the appeal application, the group appealed to the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
on grounds that the judgment in the House of Lords was a breach of Article 6 of the European Convention on Human Rights (fair trial). On 12 February 2004, a committee of three ECHR judges unanimously ruled that the application was inadmissible and it was therefore struck out. The reason for their ruling was:
The lead appellant and original 'metric martyr' Steve Thoburn collapsed and died of a massive heart attack within days of the final rejection of his case by the ECHR.
Interpretation
The case has been interpreted in various ways, including that such statutes are un-repealable and the doctrine of parliamentary sovereigntyParliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
has thus been compromised. It is important to remember, however, that the repeal of such statutes may not be possible even were it parliament's intention, due to the political cost involved. Crucially, this case, as Birkinshaw notes, brings the concept of a Hierarchy of statutes and rights, a concept unthinkable merely years before in the United Kingdom, to the forefront of administrative debate.
Shortly after judgment was handed down the Public Record Office (FCO 30/1049, 14 June 1971) released the Joint Opinion of the Attorney-General (Sir Peter Rawlinson QC, later Lord Rawlinson of Ewell QC), the Solicitor-General (Sir Geoffrey Howe QC, now Lord Howe of Aberavon QC), the Lord Advocate, Lord Wylie and the Solicitor-General for Scotland, Sir David Brand QC, advising Her Majesty's Government in terms similar to the appellants' argument that in the event of a later statute conflicting with the proposed European Communities Act the later Act would take precedence in accordance with the doctrine of implied repeal. They also advised that the 1972 Act could not be made safe from implied repeal. There is no record of this important advice having been drawn to the attention of the House of Lords in any of the Factortame cases. It is consistent with the advice given to Parliament by the Law Officers and the Lord Chancellor, Lord Hailsham of St. Marylebone, during the debates on the European Communities Bill (the Divisional Court and House of Lords in Thoburn refused to consult the Hansard record).
The Appellants attacked the conduct of the case by Laws LJ, asserting that the failure to draw the attention of counsel to the cases relied on in making the 'constitutional statute' point and the decision not to re-list the case for further argument after the court changed its mind on the point vitiated the fairness of the proceedings (with respect to the court) and breached the United Kingdom's obligations under Article 6 of the European Convention on Human Rights. The application to the European Court of Human Rights was declared inadmissible.