Skip to main content

Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156

LAWS LJ: [53] But I should deal with the other points raised by counsel on the issue of implied repeal...Miss Sharpston...submitted that the EC Treaty was not like other international treaties. It created a new and so far unique legal order, supreme above the legal systems of the member states, so that upon accession to the Community by force of the 1972 Act, the United Kingdom bowed its head to this supremacy. One consequence was that while the Parliament of the United Kingdom retained the legal power to repeal the 1972 Act by express legislation, it could not do so impliedly. The reasoning in cases such as Collco Dealings Ltd v IRC [1961] 1 All ER 762, [1962] AC 1 cannot be applied in relation to the EC Treaty. At para 1.9 in Miss Sharpston's outline written argument it is submitted:

'So long as the United Kingdom remains a member state, Parliament exercises its sovereign powers within the altered framework that continuing membership entails. So long as the United Kingdom remains a member state, the pre-accession model of Parliamentary sovereignty is of historical, but not actual, significance.'

[54] In support of her overall position as to the supremacy of EU law, and therefore the impossibility of implied repeal of the 1972 Act, Miss Sharpston relied in particular on two seminal decisions of the Court of Justice, decided in the relatively early days of the Community. The first was NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v Nederlandse Administratie der Belastigen Case 26/62 [1963] ECR 1. The court stated (at 12):

'... the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.'

Miss Sharpston asserted a contrast between this and the reasoning of Lord Templeman in Maclaine Watson & Co Ltd v Dept of Trade and Industry, Maclaine Watson & Co Ltd v International Tin Council [1989] 3 All ER 523 at 526, [1990] 2 AC 418 at 476-477, to which Mr Shrimpton had referred:

'The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty. A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty's government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.'

[55] Plainly, any treaty not incorporated into domestic law takes its place on the international plane only, as Lord Templeman explained. So far as a treaty is so incorporated, its effect in domestic law must depend upon the terms of its incorporation. In drawing the contrast she did, I take Miss Sharpston to deny this latter proposition's application in the case of the EC Treaty: or at any rate she would say that is not the whole story. She would submit that the EC Treaty's effect in domestic law does not depend, merely at least, upon the terms of its incorporation by the 1972 Act, but, in part at least (and to a decisive extent), upon principles of EU law itself. That submission is given more concrete form by the reasoning of the Court of Justice in the second case upon which Miss Sharpston relied: Costa v ENEL Case 6/64 [1964] ECR 585. This is what the court said (at 593-594):

'By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of objectives of the Treaty ... The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the Treaty grants the States the right to act unilaterally, it does this by clear and precise provisions ... It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail ...'

[56] This, says Miss Sharpston, was the state of Community law when the United Kingdom acceded on 1 January 1973. She submits that all this reasoning as to the supremacy of Community law became part of the law of England by force of the 1972 Act, notably ss 2(1) and (4), and 3(1). The effect of her submission is that by the 1972 Act Parliament entrenched Community law in the domestic law of the United Kingdom, subject only, as I understood her, to the possibility of withdrawal from the EU by express repeal of the 1972 Act. And if that were to be contemplated, Parliament's hand would not be free. There would have to be consultations and negotiations first (see para 51 of Miss Sharpston's written argument). And here, I think, is the critical proposition for her purpose: though it was done by means of the 1972 Act, EC law is said to have been entrenched, rather than merely incorporated, not by virtue of any principle of domestic constitutional law, but by virtue of principles of Community law already established in cases such as NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v Nederlandse Administratie der Belastigen Case 26/62 [1963] ECR 1 and Costa v ENEL Case 6/64 [1964] ECR 585.

[57] In the result, on Miss Sharpston's case, (i) everything that is already or will become part of the corpus of EU law ipso facto is already or will become part of the corpus of the law of England; (ii) there can be no implied repeal or abrogation of any such law, nor of any of the principal measures contained in the 1972 Act (perhaps it might be different for provisions which were no more than mechanics), and this is by virtue of EU law itself; (iii) any legislative initiative to withdraw, entirely or partially, from the EU would be subject to the fulfilment of compulsory preconditions. Since we are dealing here with the strict legal position, and not with the realpolitik of the thing, I am not entirely sure why Miss Sharpston does not go the further mile and submit that Parliament could not legislate tomorrow to withdraw from the EU at all. Such a state of affairs might be said to be vouchsafed by the reasoning in Costa v ENEL Case 6/64 [1964] ECR 585 ('permanent limitation of their sovereign rights') as readily as the more modest propositions which I have enumerated at (i)-(iii). At all events, her argument appears to me to entail the proposition that the legislative and judicial institutions of the EU may set limits to the power of Parliament to make laws which regulate the legal relationship between the EU and the United Kingdom.

Second conclusion: Community law cannot entrench itself

[58] Thus baldly stated, that proposition is, in my judgment, false. Miss Sharpston's submissions forget the constitutional place in our law of the rule that Parliament cannot bind its successors, which is the engine of the doctrine of implied repeal. Here is her argument's bare logic. (1) The 1972 Act incorporated the law of the EU into the law of England. (2) The law of the EU includes the entrenchment of its own supremacy as an autonomous legal order, and the prohibition of its abrogation by the member states (see NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Nederlandse Administratie der Belastigen Case 26/62 [1963] ECR 1 and Costa v ENEL Case 6/64 [1964] ECR 585). Therefore, (3) that entrenchment, and that prohibition, are thereby constituted part of the law of England. The flaw is in step (3). It proceeds on the assumption that the incorporation of EU law effected by the 1972 Act (step (1)) must have included not only the whole corpus of European law upon substantive matters such as (by way of example) the free movement of goods and services, but also any jurisprudence of the Court of Justice, or other rule of Community law, which purports to touch the constitutional preconditions upon which the sovereign legislative power belonging to a member state may be exercised.

[59] Whatever may be the position elsewhere, the law of England disallows any such assumption. Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the 1972 Act. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the 1972 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. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional doctrine of sovereignty. If is to be modified, it certainly cannot be done by the incorporation of external texts. The conditions of Parliament's legislative supremacy in the United Kingdom necessarily remain in the United Kingdom's hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle.

Third conclusion: the 1972 Act is a constitutional statute which by force of the common law cannot be impliedly repealed

[60] The common law has in recent years allowed, or rather created, exceptions to the doctrine of implied repeal: a doctrine which was always the common law's own creature. There are now classes or types of legislative provision which cannot be repealed by mere implication. These instances are given, and can only be given, by our own courts, to which the scope and nature of Parliamentary sovereignty are ultimately confided. The courts may say-have said-that there are certain circumstances in which the legislature may only enact what it desires to enact if it does so by express, or at any rate specific, provision. The courts have in effect so held in the field of European law itself, in Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692, [1990] 2 AC 85, and this is critical for the present discussion. By this means, as I shall seek to explain, the courts have found their way through the impasse seemingly created by two supremacies, the supremacy of European law and the supremacy of Parliament.

[61] The present state of our domestic law is such that substantive Community rights prevail over the express terms of any domestic law, including primary legislation, made or passed after the coming into force of the 1972 Act, even in the face of plain inconsistency between the two. This is the effect of the Factortame case.

To understand the critical passage in Lord Bridge's speech it is first convenient to repeat part of s 2(4) of the 1972 Act:

'The provision that may be made under subsection (2) above includes ... any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section ...'

In Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692 at 700-701, [1990] 2 AC 85 at 140 Lord Bridge said:

'By virtue of section 2(4) of the 1972 Act Pt II of the 1988 [Merchant Shipping] Act is to be construed and take effect subject to directly enforceable Community rights ... This has precisely the same effect as if a section were incorporated in Pt II of the 1988 Act which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC.'

So there was no question of an implied pro tanto repeal of the 1972 Act by the later 1988 Act; on the contrary the 1988 Act took effect subject to Community rights incorporated into our law by the 1972 Act. In the Factortame case no argument was advanced by the Crown in their Lordships' House to suggest that such an implied repeal might have been effected. It is easy to see what the argument might have been: Parliament in 1972 could not bind Parliament in 1988, and s 2(4) was therefore ineffective to do so. It seems to me that there is no doubt but that in the Factortame case the House of Lords effectively accepted that s 2(4) could not be impliedly repealed, albeit the point was not argued.

[62] Where does this leave the constitutional position which I have 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.... 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 Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. The 1972 Act 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 1972 Act is, by force of the common law, a constitutional statute.

[63] Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual-not imputed, constructive or presumed- intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and state, by unambiguous words on the face of the later statute.

[64] This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the Human Rights Act) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the 1972 Act as a constitutional statute.

Final conclusion: four propositions

[69] In my judgment (as will by now be clear) the correct analysis...involves and requires these following four propositions. (1) All the specific rights and obligations which EU law creates are by the 1972 Act incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation. (2) The 1972 Act is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom's relationship with the EU rests with the domestic, not the European, legal powers. In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the 1972 Act were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case.

[70] I consider that the balance struck by these four propositions gives full weight both to the proper supremacy of Community law and to the proper supremacy of the United Kingdom Parliament. By the former, I mean the supremacy of substantive Community law. By the latter, I mean the supremacy of the legal foundation within which those substantive provisions enjoy their primacy. The former is guaranteed by propositions (1) and (2). The latter is guaranteed by propositions (3) and (4). If this balance is understood, it will be seen that these two supremacies are in harmony, and not in conflict.