Article 50, the Prerogative and the Implied Repeal of Statutes

This blog post is by Scott Styles.

In my previous blog post I argued:

  1. Parliament is sovereign and only an Act of Parliament can repeal an existing Act of Parliament.
  2. The UK entered the European Union by the passing of the European Communities Act 1972.
  3. To trigger an Article 50 of the TEU withdrawal from the European Union is to begin a legal process which automatically ends 2 years later with the withdrawal of the UK from the EU.
  4. If the Article 50 request was made by the Prime Minister acting under the Royal Prerogative to negotiate and withdraw from international treaties this would be ultra vires (that is to say, beyond what is competent) for two reasons. First, it is inappropriate because the TEU is not an international treaty but rather a part of the domestic law of the UK Second, it would mean that the Government was by pure executive fiat de jure and de facto revoking the European Communities Act 1972 without having first obtained the necessary Act of Parliament.

I would now like to advance a further arguments in favour of this argument, based on the abolition of the principle of the implied repeal of statutes

The courts have made it clear in Thoburn v Sunderland City Council [2002] 2 WLR 247 that the old doctrine of “implied repeal” where two Acts of Parliament conflict, as found in Ellen Street Estates v Minister of Health [1934] 1 KB 590, no longer applies. In Thoburn Laws LJ set out a hierarchy of norms and made it clear that constitutional statues, one of which he expressly stated was European Communities Act 1972 was not subject to implied repeal by a subsequent act:

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental […] And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

If a subsequent Act of Parliament cannot repeal the European Communities Act 1972, how can it possibly be argued that the use of the Prerogative, a weaker source of law than an Act, can be used to impliedly revoke an Act of Parliament?

I therefore repeat my simple proposition: only a subsequent express revocation of the European Communities 1972 Act is sufficient legal authority to trigger Article 50.