Legal Case Brief
Thoburn v Sunderland City Council (2003)
CONSTITUTIONAL LAW – DELEGATED LEGISLATION – DIRECTIVES – EC LEGISLATION – WEIGHTS AND MEASURES
Facts
The Units of Measurement Regulations 1994, which were brought into force pursuant to the exercise of powers conferred by section 2(2) and (4) of the European Communities Act 1972, amended s.1 of the Weights and Measures Act 1985 so as no longer to permit the use of imperial units of measurement for purposes of trade other than as supplementary indications to metric unit.
The appellants argued that the relevant conditions were unlawful and invalid since s.1 of the 1985 Act, which permitted the continued use of imperial units of measurement, had impliedly repealed s.2(2) of the 1972 Act to the extent that it empowered the making of subordinate legislation which would be inconsistent with that section.
Issues
The court was called upon to consider arguments relating to the doctrine of implied repeal and, in particular, whether s.1 of the Weights and Measures Act 1985 had impliedly repealed the s.2(2) of the European Communities Act 1972, to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it.
Decision/Outcome
In dismissing the appeals, the Court found that the 1985 Act, as originally enacted, had not impliedly repealed s.2(2) of the 1972 Act to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it: Each specific right and obligation provided under EC law was, by virtue of the 1972 Act, incorporated into domestic law and took precedence. Anything within domestic law which was inconsistent with EC law was either abrogated or had to be modified so as to avoid inconsistency.
Updated 20 March 2026
This case brief accurately summarises the decision in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), reported in 2003. The case remains an important authority in UK constitutional law, particularly for Laws LJ’s development of the concept of ‘constitutional statutes’ and the principle that such statutes are immune from implied repeal. These principles continue to be cited and applied in UK courts.
However, readers should be aware of significant developments since the case was decided. The European Communities Act 1972, which was central to the reasoning in Thoburn, was repealed by the European Union (Withdrawal) Act 2018 with effect from exit day (31 January 2020). The supremacy of EU law over domestic law, and the mechanism by which EC obligations were incorporated into domestic law under s.2(2) of the 1972 Act, no longer applies in the same way following the UK’s departure from the European Union. The broader constitutional principle regarding ‘constitutional statutes’ and implied repeal, however, remains good law and continues to be relevant beyond the EU law context. The Units of Measurement Regulations 1994 have also been amended on various occasions since the case was decided, and the regulatory position on the use of metric and imperial units in trade has evolved following Brexit.
