Thoburn v Sunderland District Council [2002]
Facts:
- ECA 1972 is inconsistent with Weights and Measures Act 1985 (making it unlawful for imperial units of measurement to be use as the sole unit). ECA 1972 s2(2) contains a Henry VIII clause.
Held: The later act X impliedly repeal ECA 1972 as the ECA is a constitutional statute. P needs to use explicit and unambiguous words to repeal. A constitutional statute is any statute that ‘(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’.
Laws LJ’s list of constitutional statutes
a. Magna Carta
Bill of Rights 1689 HRA 1998b. Scotland Act 1998
c. Govt of Wales Act 1998
d. ECA 1972
“The fundamental legal basis of the United Kingdom’s relationship with the EU rests with the domestic, not the European, legal powers”
Opinions 💡
Thomas E.Webb - this created a 2-tier system of legislation
Marshall (2002) (concern with the principle basis) - undeniably vague definition of what constitutes a constitutional statutes and this proposition lacks a solid legitimacy in absence of reference to parliamentary intention for the statutes to be “constitutional”
Feldman (2013) (concern with practicality) - Criteria set is too wide and the list is non-exhaustive; but it is also too narrow, as it excludes other statutes that affect the structure of the constitution. A “workable test” which identify the “core function of constitution” is needed.
MISC - The understanding that domestic law needs to be align with ECA not EU law is recognised in Miller I [2017]
Wade, 1996 Thinks this is revolutionary/evolutionary that changes the place of PS position in UK Constitution