Thoburn v Sunderland City Council is a United Kingdom constitutional and administrative law case that dealt with the interaction between European Community law and domestic legislation. The case is commonly known as the “Metric Martyrs case” and arose from disputes concerning the use of imperial measurements in trade following the introduction of European legislation requiring metric units.
The decision is significant for its discussion of the doctrine of implied repeal and its explanation of the status of certain Acts of Parliament as constitutional in nature.
Legal Context and Background
The legal background to Thoburn v Sunderland City Council lies in the relationship between European Community law and UK domestic law. The European Communities Act 1972 provided the mechanism through which European Community obligations took effect in domestic law. In particular, section 2(2) and section 2(4) empowered Ministers to make subordinate legislation to bring UK law into compliance with European obligations.
The dispute also involved the Weights and Measures Act 1985. Section 1 of the 1985 Act provided that both the pound and the kilogram were legal units of measurement in the United Kingdom. This position existed alongside European measures intended to harmonise units of measurement across the European Community.
Facts of Thoburn v Sunderland City Council Case
In 1994, several statutory instruments were brought into force to implement Directive 80/181/EEC, which aimed to harmonise the use of units of measurement within the European Community. These included the Units of Measurement Regulations 1994 and the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994.
These measures were adopted pursuant to the powers contained in section 2(2) and section 2(4) of the European Communities Act 1972.
The 1994 Order did not remove the basic principle in section 1 of the Weights and Measures Act 1985 that both imperial and metric units were legal. However, it provided that the use of imperial units as the primary indication for trade purposes would become unlawful after 1 January 2000.
The continued display of imperial measurements was permitted only as a supplementary indication, provided that the metric measurement was displayed at least as prominently.
A number of traders were prosecuted or affected by these regulations. Steve Thoburn, a greengrocer, was convicted at Sunderland Magistrates’ Court in March 2001 for using weighing equipment that did not comply with the statutory requirements. Colin Hunt was convicted in June 2001 at Thames Magistrates’ Court for selling goods priced solely by reference to imperial units.
Julian Harman and John Dove were convicted in August 2001 at Bodmin Magistrates’ Court for selling goods exclusively by reference to imperial measures. Peter Collins challenged the conditions of a proposed market stall licence that required the use of metric measurements; his claim was rejected by Sutton Magistrates’ Court.
All five individuals challenged the decisions against them, leading to the proceedings that ultimately resulted in Thoburn v Sunderland City Council.
Decision of the Magistrates’ Court
In the magistrates’ court proceedings leading up to Thoburn v Sunderland City Council, it was stated that, while the United Kingdom remained a member of the European Union, domestic law was subject to the principle of the primacy of Community law. It was noted that the passage of the European Communities Act 1972 meant that European legislation became part of domestic legislation and took precedence where applicable.
Issues Before the Court
The principal issue before the Divisional Court in Thoburn v Sunderland City Council concerned the doctrine of implied repeal. The appellants argued that section 1 of the Weights and Measures Act 1985, by recognising imperial and metric units as equally legal, had impliedly repealed section 2(2) of the European Communities Act 1972 in so far as it authorised subordinate legislation inconsistent with that position.
Linked to this was the argument that implied repeal could operate pro tanto, meaning a later Act could carve out an exception to the operation of an earlier Act without fully displacing it. The appellants also contended that consolidation statutes were capable of bringing about implied repeal in the same way as any other Act of Parliament.
A further issue raised concerned the nature of the legislative power contained in section 2(2) of the European Communities Act 1972, described as a Henry VIII clause. The appellants argued that such a power could only apply to legislation already in existence at the time the authorisation was granted and not to future Acts of Parliament.
In addition, arguments were advanced based on public international law, including reliance on the Vienna Convention on the Law of Treaties. These arguments suggested that European treaties could not override fundamental principles of parliamentary sovereignty recognised in domestic constitutional law.
Thoburn v Sunderland City Council Judgement
The Divisional Court dismissed the appeals. In doing so, it rejected the submission that there had been an implied repeal of section 2(2) of the European Communities Act 1972 by the Weights and Measures Act 1985.
Laws LJ accepted that the 1985 Act permitted imperial and metric units to operate side by side. He also accepted that implied repeal could operate pro tanto and that the Australian authority relied upon by the appellants correctly stated the law.
However, he held that there was no inconsistency between the European Communities Act 1972 and the Weights and Measures Act 1985. There could be no inconsistency between a statutory provision granting a Henry VIII power and the legislation made pursuant to that power. The subordinate legislation introduced under section 2(2) was therefore valid.
The Court further rejected the argument that the Henry VIII power was limited to legislation existing at the time it was enacted. Such a limitation would, in the Court’s view, improperly restrict the legislative competence of Parliament and would be inconsistent with the doctrine of parliamentary sovereignty.
Constitutional Statutes and Implied Repeal
Although not essential to the decision, Thoburn v Sunderland City Council is particularly notable for Laws LJ’s discussion of constitutional statutes. He reasoned that certain statutes occupy a special constitutional status and are not subject to implied repeal.
According to this analysis, a constitutional statute is one that conditions the legal relationship between the citizen and the state in a general and overarching way or affects fundamental constitutional rights.
Examples of such statutes were identified, including the European Communities Act 1972. Laws LJ explained that constitutional statutes may only be repealed by express words of Parliament. They are not entrenched so as to be immune from repeal altogether, but they are protected from implied repeal. This reasoning placed constitutional statutes in a distinct category within domestic law.
Relationship Between EU Law and Domestic Law
In analysing the relationship between European Community law and domestic law, the Court set out a number of propositions in Thoburn v Sunderland City Council. First, specific rights and obligations created by European Community law were incorporated into domestic law by virtue of the European Communities Act 1972 and took precedence over inconsistent domestic law.
Secondly, the European Communities Act itself was identified as a constitutional statute and thus immune from implied repeal. Thirdly, the category of constitutional statutes was derived from domestic common law rather than European law. Finally, the legal basis for the United Kingdom’s relationship with the European Union was rooted in domestic law, not European law.
Attempts to Appeal and Aftermath
Following the Divisional Court’s judgement, the appellants sought leave to appeal to the House of Lords. Although the court certified that the case raised an issue of general public importance, permission to appeal was refused after an oral hearing. The House of Lords stated that the appeal did not raise points capable of reasonable argument.
Subsequently, an application was made to the European Court of Human Rights on the basis that the refusal of leave to appeal breached Article 6 of the European Convention on Human Rights. The application was declared inadmissible.
Later changes in both European and domestic legislation meant that traders were permitted to continue using imperial measurements as supplementary indications alongside metric units beyond the end of 2009.
Conclusion
Thoburn v Sunderland City Council stands as an important authority on implied repeal, delegated legislation, and the constitutional status of certain Acts of Parliament. The case clarified that the supremacy of European Community law within domestic law rested on the European Communities Act 1972 and demonstrated how that Act was treated as a constitutional statute within the UK legal system.
While subsequent constitutional developments have altered the UK’s relationship with European law, the reasoning in Thoburn v Sunderland City Council remains significant for understanding the domestic foundations of constitutional hierarchy and legislative authority.