Constitutional Law - Formative Assessment

Thoburn v Sunderland City Council [2003] QB 151
The case of Thoburn v Sunderland City Council [2003] QB 151 (as known as the Metric Martyrs case)1,
is a UK constitutional and administrative law case, with regards to EU legislation and a Parliamentary
act. The case focuses of the supremacy of EU law, rather than the voluntary acceptance of its
supremacy founded earlier with the case R (Factortame Ltd) v Secretary of State for Transport 2.
However, Thoburn emphasised putting less importance to the European Court of Justice (ECJ) and
more on domestic approbation to such a hegemonic union.
The appellant of the case were culpable of not selling fruit in metric amounts, making it an illegal
offence at time of conviction. In response to this, the European Commission treaty (EC) was held
supreme against the legal systems of the member state (UK). In the joining of the EU in 1972, the UK
in fore agreed to EU law as supreme to national law, in which became a constitutional act that could
not be implied repeal. A portion of the European Communities Act 1972 that allowed for legal
amendments to be made by regulation was impliedly repealed by later legislation, which led to their
challenge of the validity of the regulation bringing about the change. A ‘constitutional statute’ was
introduced into British jurisprudence in this case.
In this, Sir John Laws LJ (Para. 62) instigated the proposal of constitutional statutes; he quoted “We
should recognise a hierarchy of Acts of Parliament: as it where ‘ordinary’ statutes and
‘constitutional’ statutes” whilst referencing to major statutes including: the Bill of Rights 1688, the
European Communities Act 1972, the Magna Carta 1297 and the Human Right Act 1998. With this
said, he continued to argue that ‘ordinary’ statutes could in fact be impliedly repeald, but the same
could not be said for ‘constitutional’ statutes. In order to repeal a constitutional statute, the
amendment or repeal must be expressly stated in a subsequent Act of Parliament or be manifest in
the intention of the legislature. Traditional practice has held that Parliament may amend or repeal all
Acts of Parliament either expressly or implicitly. When referring to an act being expressly repealed, it
is that a clause in a later act explicitly declares that a prior act, or its provisions are repealed. For
instance, the Schedule to Haulage Permits ad Trailer Registration Act 2013 (paragraph 1) states: “The
International Road Haulage Permits Act 1975 is repealed” 3. Conflicts between a later and an earlier
Act of Parliament results in implied repeal. In that case, the earlier Act is held to have been impliedly
repealed by the latter one to the extent required to handle any inconsistencies between both Acts.
Scrutton LJ ruled in Ellen St Estates v Minister of Health that the “constitutional position” is what
Parliament may change a prior statute “by enacting a provision that is clearly incompatible with the
preceding law”4
In the doctrine of implied repeal, the provisions of one Act of Parliament can be abrogated by a later
act if they are consistent or abhorrent to those of an earlier one. As for the case of Thorburn v
Sunderland City Council, the Government viewed clause 18 as an important legislative rule that could
not be easily altered, therefore “the matter beyond speculation for the future” 5 . “Any future court
considering an argument about the source of authority for European Law in this country must take
the clause into account”6, stated David Lidington MP, Minister for Europe at the time of second
reading.
1
Thoburn v Sunderland City Council [2003] QB 151
2
UKHL 7, C-213/89; (1991) C-221/89; (1996) C-46/93, UKHL 44, EWHC 179
3
Haulage Permits and trailer Registration Act 2018 (c.19)
4
Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590
5
European Scrutiny Committee, 1st Special Report (2010-11), op.cit, paragraph 9
6
HC Deb 7 December 2011, col 271
Clause 18 may inadvertently invite questions in courts about why Parliament falied to exercise its
sovereignty by seeking to shield it only in terms of EU law, as argued in evidence before the
European Scrutiny Committee. Specifically, members of Parliament have expressed concern that the
principle might be taken to be too relaxed in the face of other clear threats. 7 According to the
Government, "these provisions are unlikely to pose a threat to other aspects of sovereignty." That is
also one of the reasons the clause does not mention sovereignty by name but rather focuses on
practical effects.8 A recent debate about the status and meaning of parliamentary sovereignty is at
the core of clause 18, as outlined by the European Scrutiny Committee 9. There is a focus on how
parliamentary sovereignty is constitutionally stipulated. By referencing Clause 18 in the original
notes and “making it statutory that EU law only takes effect here through an Act of Parliament”
there appears to be support for one side of the argument, namely that the sovereignty of Parliament
ultimately requires the application of common law.
7
Most obviously in the sphere of human rights: see European Scrutiny Committee, 10th Report (2010-11), op.
cit, paragraphs 62-63 and 85
8
European Scrutiny Committee, 1st Special Report (2010-11), op. cit, paragraph 24
9
European Scrutiny Committee, 10th Report (2010-11), op.cit, paragraphs 22-28
Bibliography
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<https://publications.parliament.uk/pa/ld201011/ldselect/ldconst/121/12105.htm#n66> accessed 25
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<https://simplestudying.com/thoburn-v-city-council-2003/> accessed 25 November 2021
Webb T, 'Thoburn V Sunderland City Council [2002] EWHC 195 (Admin), Divisional Court' (Law Trove, 2021)
<https://www.oxfordlawtrove.com/view/10.1093/he/9780191897689.001.0001/he-9780191897689-chapter-
65> accessed 25 November 2021
(2021) <https://www.legalcheek.com/lc-journal-posts/constitutional-statutes-a-brief-overview/> accessed 25

November 2021

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Thoburn v Sunderland City Council [2003] QB 151

'House Of Lords - European Union Bill - Constitution Committee' (Publications.parliament.uk, 2021)

(2021) <https://www.legalcheek.com/lc-journal-posts/constitutional-statutes-a-brief-overview/> accessed 25

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