Explain and discuss the statement in Thorburn v Sunderland City Council [2002] 3 W.L.R.

In many countries, a written, codified constitution is established, and in order to preserve the laws of that constitution, special provisions are made in order to limit the ability to amend or abolish these laws in the future.  In the UK, this is impossible because, in the words of Laws LJ, ‘Parliament cannot bind its successors by stipulating against repeal’, or amendment.  It is the doctrine of Parliamentary sovereignty which makes this impossible; Dicey sates that ‘Parliament has failed…to enact unchangeable enactments’ because ‘while retaining its sovereign character’ it cannot ‘restrict its own powers by any particular enactment’.  This is because ‘however one seeks to entrench an Act--for instance, by special majority provisions--a subsequent Act, even passed by a simple majority, would repeal it.’  Previous legislation can be as easily overridden by a successive parliament whether an attempt has been made to make the Act unchangeable or not.  Proof of this is that when Henry VII passed an Act in which it was stated that it could not be repealed, an attempt was made to entrench it, but an early 19th century annotator of the State Trials refers to it as a void provision.  Hence the observation by Laws LJ that Parliament ‘cannot stipulate as to the manner and form of any subsequent legislation’.

The difficulty faced by the court in the case from which the statement was taken was whether the Weights and Measures Act 1985 repealed the European Communities Act 1972 (ECA).  The European Communities Act 1972 incorporated the Treaty of Rome into English Law, and so the UK has undertaken the requirement to accept the Community.  The judges would have to consider which legal system was supreme in order to decide whether or not repeal had occurred.  If Community law was supreme then the Weights and Measures Act 1985 was incapable of repealing the ECA, but if this stance was taken, then the traditional Diceyan theory of Parliamentary sovereignty would be brought into question.  

From the point of view of the European Court of Justice (ECJ), Community law is supreme over national law.  In Costa v ENEL (1964) it was said that ‘[t]he transfer by the sates 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 Community law cannot prevail’.  Lord Bridge, in his judgment of Factortame (No. 2) also states that ‘[u]nder the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court…to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.’ However, as previously mentioned, Lord Justice Salmon maintained that Parliament ‘can enact, amend and repeal any legislation it pleases’, and like Lord Bridge, he recognised that joining the European Community was not an illegal surrender of sovereignty, because ‘whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.’  In other words, all of the EU's powers flow from Parliament's sovereignty by way of the original Act, and thus Parliament retains ultimate sovereignty because it could repeal the original Act.

Lord Justice Laws seems also have taken the stance of Lord Bridge and Salmon LJ by stating that ‘Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA’ because they ‘cannot stipulate as to the manner and form of any subsequent legislation’.  Following Dicey’s opinion that ‘no person or body is recognised…as having a right to override or set aside the legislation of Parliament’, Laws LJ further states that ‘there is nothing in the ECA 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’.  Hence it would seem he says that the ECJ has no right to assume absolute permanent sovereignty as it tried to in Costa.  

However, the decision to be made by the judges was not necessarily to decide which legal system had sovereignty over the other, but whether or not the Weights and Measures Act 1985 was capable of repealing the ECA.  Given that in his statement the judge rules that the ECA is simply an Act of Parliament, one might assume that it is capable of repeal by the later Weights and Measures Act, and that the ‘Metric Martyrs’ would win their case.  However, following the judgment within paragraph 59 of this case, it was said that there is now a ‘hierarchy of Acts of Parliament’, with those that were ‘ordinary’, and the ‘constitutional’ above them.  Within this latter category came the ECA, because ‘[i]t incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.’12  This distinction was significant, because it meant that the Act could only be expressly repealed, and was incapable of implied repeal. Laws LJ explained:

‘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.’

Thus European Union law is supreme in this country but only to the extent given by the European Communities Act, which can be repealed should Parliament explicitly decide to do so.  The ECA has a temporary sovereign power which will last for as long as Parliament allows, through abstaining from repealing the Act expressly.  

In this case then, the judges theoretically had the opportunity to end parliamentary sovereignty.  Having established that the ECA is in a special, constitutional class, which is incapable of implied repeal, it would have been possible to go a stage further, and agree with the judgment of the ECJ, that there had been a ‘permanent limitation of [Parliament’s] sovereign rights’ when the ECA was formed.  According to Barnett, this is one of the ways in which Parliamentary sovereignty can be ended; when the judiciary accept ‘that Parliament is no longer the sovereign law making body and that the judges owed allegiance to an alternative…sovereign power’ the convention would cease to exist.  After all, Parliamentary sovereignty is merely a constitutional convention, because no statute lays down the legislative supremacy of the UK Parliament, and ‘nor could it be, for the ultimate law maker cannot confer upon itself ultimate power’.  Instead, ‘[t]he ultimate rule is extra-legal…it is the judges who uphold and reinforce the sovereignty of parliament’.  

To recognise, instead, that this Act, which has ‘profound effects on so many dimensions of our daily lives’ is in a unique class, that cannot be repealed under the doctrine of implied repeal, was a decision which allowed for the theoretical continuation of Parliamentary sovereignty.  It allows the constitutional arrangement of the UK to remain flexible, in that legislation can continue to be repealed using only a majority in parliament, without the requirements of a referendum or special majority, as is the case in many countries with entrenched ‘constitutional’ laws.  The compromise has been made: the UK courts will override national law which is found to be in conflict with Community law, but that the supremacy that this law has is retractable at any point by Parliament.

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