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rights" form a special and superior category known as "constitutional statutes" and can only be expressly repealed or abrogated by Parliament and therefore immune from the doctrine of implied repeal. Included within this category is the European Communities Act 1972.

Legislative background

The law relating to weights and measures was consolidated in 1985 in the Weights and Measures Act. 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 instruments 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.

These statutory instruments were 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 greengrocer, 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.

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 repeal 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 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.

For their part, the respondents 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.

Judgment

Giving his judgment, Lord Justice Laws joined the appellants' arguments together before rejecting them in their entirety: there was no question of implied repeal as there was no inconsistency between the 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.

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, 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."

Interpretation

This has been interpreted in various ways, including that such statutes are un-repealable and the doctrine of parliamentary sovereignty 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.

External links

• Thoburn v Sunderland City Council (2002)
• Weights and Measures Act 1985
• The Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994
• The Units of Measurement Regulations 1994
• Directive 80/181/EEC (as amended)

References

• Birkinshaw, Patrick European Public Law. London: Butterworth-Heinemann.
• Boyron, Sophie "In the name of European Law: the Metric Martyrs case". European Law Review 27 (6): 771–779.
• Marshall, Geoffrey "Metric Martyrs and Martyrdom by Henry VIII clause". Law Quarterly Review 118 493–502.
• Young, James "The Metric Martyrs and the Entrenchment Jurisprudence of Lord Justice Laws". Public Law 399–406.