Constitutional statutes and implied repeal (Thoburn v Sunderland City Council)
In 2026 a claimant argues in the High Court that a provision of a (fictional) 2025 Act of Parliament on local tax collection is inconsistent with a provision of the Human Rights Act 1998, and that the 2025 Act has therefore impliedly repealed the 1998 provision so far as the two conflict. The 2025 Act does not mention the Human Rights Act 1998, and its words are general. The claimant also points to a statement by the minister in Parliament suggesting that the Bill was intended to override 'any earlier legislation'.
Which of the following best describes how the court is likely to approach the implied repeal argument, applying Thoburn v Sunderland City Council?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: The 1998 provision is unlikely to have been repealed, as a constitutional statute can be repealed only expressly or by words so specific that an actual intention to repeal is irresistible.
THE RULE TO REMEMBER
Constitutional statutes are not subject to implied repeal; they can be repealed only by express words or words so specific that an actual intention to repeal is irresistible.
Constitutional statutes and implied repeal (Thoburn v Sunderland City Council)
In Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Laws LJ recognised a hierarchy of 'ordinary' and 'constitutional' statutes, naming the Human Rights Act 1998 among the examples of constitutional statutes. Ordinary statutes may be impliedly repealed; constitutional statutes may not. For a constitutional statute to be repealed, the court would ask whether the legislature's actual (not imputed, constructive or presumed) intention was to repeal it. That test could be met only by express words in the later statute or by words so specific that the inference of an actual determination to repeal was irresistible. Laws LJ added that general words could not be supplemented by what a minister said in Parliament under Pepper v Hart. The 2025 Act uses only general words and does not mention the 1998 Act, so it is unlikely to have impliedly repealed the 1998 provision. Parliament remains sovereign: it could repeal the provision by express words.
Why A is wrong: Thoburn treats the ordinary rule of implied repeal as having no application to constitutional statutes.
Why B is wrong: Thoburn preserves parliamentary sovereignty: constitutional statutes can be repealed, but only expressly or by specific words.
Why D is wrong: Courts in England and Wales cannot declare an Act of Parliament invalid; Thoburn is about interpretation, not striking down legislation.
Why E is wrong: Laws LJ said general words cannot be supplemented by ministerial statements in Parliament to effect repeal of a constitutional statute.
A little more practice done.
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