A lot of text books talk of a 'doctrine' of implied repeal. Could this be a convention? I know that the doctrine of parliamentary sovereignty is not, as it's source is in the Bill of Rights 1688. If it's not a convention, does anyone know the source?
x Turn on thread page Beta
Is the doctrine of implied repeal a convention? watch
- Thread Starter
- 01-04-2011 18:18
- 01-04-2011 20:34
I wouldn't call it a convention. Ellen Street Estates v Minister of Health (CA) approves Vauxhall Estates Ltd v Liverpool Corp, a first instance judgment, on this point. Both Maugham LJ and Scrutton LJ refer to the inability to bind a subsequent parliament (and hence the ability to impliedly repeal earlier judgments) as the "constitutional position". It is at this point a well-established principle of statutory interpretation. It's part of what might be called the orthodox, traditional position on parliamentary sovereignty. In this vein, you might consider whether Parliament can bind itself as to the nature and form of legislation. If it could, then implied repeal of those constraints is prima facie not possible.
It's worth looking at Lord Justice Laws' comments on implied repeal in Thoburn. (For that matter, his 1995 PL article on Law and Democracy, written extrajudicially, is both revealing and interesting.) Laws LJ distinguishes between "ordinary legislation" (which can be impliedly repealed) and "constitutional legislation" (which he says cannot). His point is obiter and heretical. The distinction arguably lacks a basis in authority. Some of the dicta in other judgments (in particular Lord Steyn and Lord Hoffman on illegality in ex p Simms, and various dicta in Jackson), however, lend credence to his point. The common law radicals (as Turpin and Tomkins refer to them) might well lean towards Laws point on this, though their view is probably still the minority one. To some extent this discussion goes right to the heart of the debate about parliamentary sovereignty.
Also, the Bill of Rights can't create parliamentary sovereignty. Neither can any other statute. See Wade's classic 1955 CLJ article on why a statute can't be the source of parliamentary sovereignty--though realistically, it's fairly obvious that such an argument would be circular.Last edited by jjarvis; 01-04-2011 at 20:38.