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Legal System

“The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If, in a subsequent Act, Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature. ” (per Maugham LJ in Ellen Street Estates Ltd v Minister of Health [1934]).

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We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes. [… ] Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation?

I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. [… ] A constitutional statute can only be repealed… by unambiguous words on the face of the later statute. per Laws LJ in Thoburn v Sunderland Council [2002]).

In the light of these judicial statements, discuss how (if at all) the doctrine of Parliamentary Sovereignty may be said to have altered because of changes to the doctrine of implied repeal. Consider also the effect of increased secondary legislation, devolution, membership of the EU and adoption of the Human Rights Act 1998 on the doctrine of Parliamentary sovereignty

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