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

KEY POINTS

• The concept of implied repeal states that if the Parliament passes successive statutes that make irreducibly conflicting provisions, the earlier statute is impliedly repealed by the later one.

• While, ordinary statutes can be impliedly repealed, constitutional statutes cannot be impliedly repealed under common law. 

FACTS

• This case involved municipal legislation in the United Kingdom giving way to the European Union's policy of establishing compulsory systems of metric weights and measures in member states. 

• Steve Thoburn, the appellant, operated as greengrocer in Sunderland and used scales that measured in pounds and ounces. In February 2002, he received a 28-day notice from an authorized inspector warning him that his equipment didn't adhere to the current law as it stood and required him to change it so that it generated measurements in metric units.

• The Units of Measurement Regulations of 1994 amended Section 1 of the Weights and Measures Act of 1985 to prohibited the use of imperial units of measurement for trade purposes other than as supplementary indications to the metric unit. These regulations came into effect in accordance with the powers granted by Sections 2(2) and (4) of the European Communities Act of 1972.

• The Appellant disregarded the notice, and the inspector removed the imperial measure stamps from his machines in March 2000. Despite this, the Appellant continued to sell fruits and vegetables by the pound and ounce using the now-unstamped machines.

• He was charged with two violations under s 11(2) and (3) of the Weights and Measures Act 1985 (for using two unstamped machines). However, he plead not guilty to both charges. 

• The Appellant contended that the relevant conditions were unlawful and invalid because Section 1 of the 1985 Act, which allowed the continued use of imperial units of measurement, impliedly repealed Section 2(2) of the 1972 Act, and that pound and kilogram were viewed as equally legal units. 

• Therefore, as a result, the court was asked to assess issues relating to the doctrine of implicit repeal, namely whether section 1 of the Weights and Measures Act 1985 impliedly repealed section 2(2) of the European Communities Act 1972.

COMMENTARY

• The court dismissed the appeal, ruling that because the ECA is a constitutional statute, the Weights and Measures Act 1985, as originally enacted, did not implicitly repeal Section 2(2) of the ECA 1972. Each individual right and obligation given under EC law was incorporated into domestic law and acquired precedence. Anything in domestic legislation that was inconsistent with EC law was either amended to prevent inconsistencies or abrogated. 

• The court added that, The EC Treaty was unlike any other international treaty. It established a new and thus far unique legal order, superior over the legal systems of the member states, such that when the United Kingdom joined the Community by force of the 1972 Act, it bowed its head to this supremacy. As a result, while the United Kingdom Parliament retained the legal authority to repeal the 1972 Act by express legislation, it is unable to do so impliedly. 

• Therefore, everything in UK’s substantive law that is inconsistent with any of the rights and obligations that EU law creates, which is incorporated by the ECA into UK’s domestic laws, must be modified or changed to avoid inconsistencies. The rights and obligations created by the EU laws rank supreme. Moreover, Since the ECA is a constitutional statute, it is not possible to impliedly repeal it. 

• This judgement served as another confirmation that EU Law, incorporated into UK’s domestic laws, by virtue of the ECA is far more superior than all other domestic laws.

ORIGINAL ANALYSIS

• In the case of Thoburn 2002 some sweet traders using imperial units had been sued under regulations enacting an EC directive on metric units.

• In this case the CA (Laws LJ) said that the European Communities Act 1972 had modified the understanding of sovereignty, and that there could now be said to be “constitutional acts” which could only be repealed where an act of parliament explicitly willed it to be so.

  • An act which indirectly contradicted the ECA 1972 was to be disapplied since the ECA 1972 had such a “constitutional” nature.

• The appellants to the Court of Appeal invoke the doctrine of implied repeal (i.e. that the earlier act ECA 1972, under whose authority the regulations were made) clashed with a later act (Weights and Measurements Act 1985) and therefore the ECA 1972 was impliedly repealed.

• The Second argument was that delegated legislation (e.g. power to make regulations) only existed in relation to acts existing at the time and which mentioned the fact that they could be amended/allow delegated legislation. They couldn’t apply to future acts.

Laws LJ

• Rejected these 2 arguments on 4 grounds:

  1. The rights and obligations of EU are law and anything which disagrees with them is to be abrogated or construed so as to apply.

  2. The ECA 1972 has a constitutional character and therefore is not subject to implied repeal.

  3. The common law recognises the category of constitutional statutes.

  4. The legal basis for UK relationship with EU was on provisions of UK, NOT EU, law.