Implied Repeal and Constitutional Statutes

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What if parliament is flawed?

The general proposition that parliament is sovereign is a good one

However, parliament sometimes passes inadequate legislation that is ambiguous and not helpful

Thus, we must discuss express repeal, implied repeal and constitutional statutes

Express Repeal


An express repeal works as follows:

  • If you have an Act of Parliament adopted on a certain matter and then another Act of Parliament is adopted laying down a new set of laws (on the same, similar, or different matter), a schedule can be attached to the newer Act of Parliament listing the provisions in the older Act that are repealed

So, even the Magna Carta can technically be repealed

  • For example, the Offenses Against the Person Act 1828 repealed clause 26 of the Magna Carta

Implied Repeal


What if it is not clear what parliament wants to enact or repeal?

It is possible for an Act of Parliament to be repealed by implication: see, for example, Vauxhall Estates v Liverpool Corporation (1932), which is the leading case on implied repeal

  • So, a newer Act of Parliament will impliedly repeal a conflicting older Act of Parliament

Choices by judges

Judges can make functionalist interpretations:

  • The constitution arises on the basis of the people and their consent is manifested through parliament. So, if parliament intended to do something, such as amending the law, it will say so
  • Thus, the courts should not give effect to legislation unintended by parliament. So, the courts should not give effect to the latter act because it will go against the consent of the people according to a functionalist interpretation
    • Accountability and the people are very important with a functionalist interpretation by judges

Judges can make formalist interpretations:

  • Simply, courts should obey the most recent Act of Parliament
  • If the newer act is inconsistent with the older act, the newer one should prevail

Ellen Street Estates Ltd v Minister of Health (1934) agreed with Vauxhall Estates v Liverpool Corporation (1932) and said that the later act prevails

  • Maugham LJ: “it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal”

So, thus far, judges have made the formalist interpretation!

BUT, see the case of Macarthys v Smith (1979) → it was held that European Community law (now EU law) prevails over our law – you cannot legislate contrary to community law

  • Lord Denning: "Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it."
  • This is important as it shows Parliament is perhaps weaker than the EU and the formalist approach could not be adopted by the judges here

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"Constitutional Statutes"

In Thoburn v Sunderland City Council (2001) there was a dispute as to whether the ‘earlier’ Act (the European Communities Act 1972), which insisted on the use of metric units, had been impliedly repealed the Weights and Measures Act 1985

  • This was a question of profound constitutional importance because if the appellants succeeded the EU wouldn’t function properly as the member states would be able to adopt their own law to work against the law of the EU
  • The appellants were arguing that Acts of Parliament made later than EU law would prevail, undermining the importance of EU law! This would be a decision counter to Macarthys Ltd v Smith (1979)
  • The appeal was fortunately dismissed and it was mentioned, obiter, that implied repeal would not be applicable in this situation: “Ordinary statutes may be impliedly repealed. Constitutional statutes may not.” (Laws LJ)

What is a constitutional statute?

“In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and the state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” (per Laws LJ in Thoburn v Sunderland City Council (2001))

  • Both (a) and (b) sound like the same thing, which is a possible criticism of this definition. But, in essence, a constitutional statute is just a very important statute e.g. the European Communities Act is clearly a very important statute
  • For a constitutional statute to be repealed it must be done expressly

Examples of constitutional statutes:

  • “Examples are Magna Carta 1297, the Bill of Rights 1689, the Union with Scotland Act 1706, the Reform Acts which distributed and enlarged the franchise (Representation of the People Acts 1832, 1867 and 1884), the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998 . The 1972 Act clearly belongs in this family.” (per Laws LJ in Thoburn v Sunderland City Council (2001))

Criticisms of constitutional statutes

They have a vague definition without a clear dividing line between them and ordinary Statutes

They are too narrow → some constitutional statutes are not concerned with rights, but just concerned with institutions of the state and their relationships

Constitutional statutes are unsupported by higher judicial organs

They are contrary to parliamentary sovereignty → why should some acts of parliament have more powers than others if there is no statutory hierarchy?

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