Public Law (Clarendon Law Series) by Tomkins Adam

Author:Tomkins, Adam [Tomkins, Adam]
Language: eng
Format: epub
Publisher: Oxford University Press, USA
Published: 2003-07-17T00:00:00+00:00

(E) ‘CONSTITUTIONAL’ STATUTES?

Before we leave the topic of legislative supremacy there is one final point that calls to be addressed. In a recent judgment, an experienced and influential public law judge has suggested that the common law may recognize a category he described as ‘constitutional statutes’.45 The case, popularly known as the Metric Martyrs’ case, concerned the prosecution of a number of traders for using imperial measures (pounds and ounces) rather than metric measures (kilograms). For a long period traders were able to use either but, by virtue of EC Directives, after a certain point only metric measures could be used. Legal proceedings were taken against the traders concerned for continuing to use imperial measures after this cut-off point. As part of their legal argument, the traders argued that the power under which the government had transposed the Directive into English law (this power being contained in the European Communities Act 1972, section 2(2) ) had been impliedly repealed by the Weights and Measures Act 1985, a statute that had in its original form permitted both metric and imperial measures to be used. The 1985 Act was amended by secondary legislation in 1994 to the effect that after a certain date only metric measures would be permitted. The traders argued that such amendment was invalid and unlawful on the ground that the statutory power that authorized the government to make the amendment (ECA 1972, section 2(2) ) had been impliedly repealed by the Weights and Measures Act 1985. In the Divisional Court judgment was given by Laws LJ, who rejected the implied repeal argument and held against the traders.

What is of interest in the case is not so much the outcome as the reasoning employed by Laws LJ. He offered a number of reasons why the implied repeal argument failed. His main reason was (correctly) that there was no inconsistency between the provisions of the 1972 Act and those of the 1985 Act. If he had stopped there, all would be well, but he continued to opine that even if there had been an irreducible inconsistency between the provisions of the ECA and those of a later Act there could in any event be no implied repeal of the ECA because it was ‘by force of the common law, a constitutional statute’.46 While ‘ordinary’ statutes may be impliedly repealed, ‘constitutional’ statutes may not, according to Laws LJ. This previously unheard of category of constitutional statutes would include, in his opinion, Magna Carta, the Bill of Rights 1689, the Acts of Union,47 the Reform Acts (concerning the franchise), the Human Rights Act, and the devolution legislation of 1998, as well as the ECA.

The only authority Laws LJ cited in support of these—wholly novel—propositions was Factortame I, of which he stated that ‘in Factortame I the House of Lords effectively accepted that section 2(4) [of the ECA] could not be impliedly repealed, albeit that the point was not argued’.48 Not only is it extremely unlikely that the House of Lords would ever

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