Thoburn v Sunderland City Council

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Thoburn v Sunderland City Council [2002] EWHC 195 is a vital case in constitutional and administrative law in the United Kingdom. In it, Lord Justice Laws suggests that "constitutional statutes" possess a superior status in English law, and they are unsuitable for Implied repeal. This runs contrary to the principle of equality, previously thought in English Law to mean that all statutes were equal in their ability to be impliedly or expressly repealed.

1 Facts
2 Ruling
3 Interpretation
4 See also
5 References

[edit] Facts

The case concerned prosecution of market traders for refusing to use metric measures as ordained in an EU directive(80/181/EEC). The challenge the traders made concerned the way in which the directive was implemented, namely through subordinate legislation containing the power to amend future legislation.

[edit] Ruling

Laws LJ, dismissing the appeals, held there was no claim against the right to use a Henry VIII clause. Parliament cannot bind its successors, and therefore cannot stipulate the form of any subsequent legislation. He further held that the common law has in recent years created exceptions to the doctrine of implied repeal, to the extent that there are certain circumstances in which the legislature may only repeal if it does so by express wording or provisions. Constitutional statutes fell into this category. Whereas ordinary statutes can be impliedly repealed, constitutional statutes may not. The European Communities Act 1972, the Human Rights Act, Habeas Corpus and Magna Carta, amongst others would all fall into this category.

It was stated:

"In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute."

[edit] 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.