A TALE OF TWO SUPREMACIES, FOUR GREENGROCERS, A FISHMONGER, AND THE SEEDS OF A CONSTITUTIONAL COURT

Abstract

The phrase “hierarchy of norms” sounds alien or continental to the ears of most British constitutional lawyers: generations have been taught that, in order to respect the sovereignty of Parliament, they should compare statutes only in temporal terms, preferring a more recent statute over incompatible older ones. In Thoburn v. Sunderland City Council and related appeals [2002] EWHC 195 (Admin), [2002] 3 W.L.R. 247, four greengrocers and a fishmonger, backed by the UK Independence Party, unsuccessfully invoked this doctrine of implied repeal to challenge the validity of the UK’s messy implementation of European Metrication Directives. If obiter dicta by Laws L.J. are followed, it will be not for our political representatives but for our courts to decide whether to prefer older statutes protecting “constitutional rights” over more recent statutes, and to rank constitutional rights.