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Parliamentary sovereignty — SQE1 Public law question

A worked single-best-answer question on parliamentary sovereignty, with why each wrong option is wrong — the way SQE1 traps candidates.

Parliamentary sovereignty

A 2025 Act on public order contains a general provision allowing police to 'take such steps as they consider necessary' to clear protest sites. The Act does not mention the Human Rights Act 1998. Della, a protester, relies on the Human Rights Act. The police argue that, because the 2025 Act is later in time and its general wording is wide, it has impliedly repealed the Human Rights Act so far as it applies to protest sites.

Which of the following best describes the court's likely approach?

  1. AThe Human Rights Act will not be treated as impliedly repealed, because constitutional statutes can be repealed only by express words or words so specific that the intention is irresistible.
  2. BThe Human Rights Act is impliedly repealed, because whenever two Acts conflict the later Act prevails.
  3. CThe Human Rights Act cannot be repealed in any circumstances, because it is entrenched.
  4. DThe 2025 Act is invalid to the extent that it conflicts with the Human Rights Act.
  5. EThe court must make a declaration that the 2025 Act has impliedly repealed the Human Rights Act.
Show answer and reasoning
A is the best answer. Ordinarily, where two statutes conflict, the later impliedly repeals the earlier. However, in Thoburn v Sunderland City Council, Laws LJ identified a category of 'constitutional statutes', including the Human Rights Act 1998, which are not subject to implied repeal; they can be repealed only by express words or words so specific that the inference of actual intention is irresistible. General words in a later Act will not do.

Rule: Constitutional statutes are not impliedly repealed; repeal requires express words or words so specific that Parliament's intention is irresistible.

  • B This states the ordinary doctrine of implied repeal, which does not apply to constitutional statutes. (right rule, wrong facts)
  • C Parliament can repeal the Human Rights Act expressly; it is protected only from implied repeal. (wrong rule)
  • D A conflict does not make a later Act invalid; at most the court interprets it compatibly or makes a declaration of incompatibility. (wrong rule)
  • E There is no such declaration; the court would hold that no implied repeal has occurred. (wrong rule)

Source: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3

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