The Metric Martyr
Appeal Hearing, November 20th-22nd, 2001
| This account of the Appeal
hearing is based on notes written long-hand in Court. It offers detailed
snapshots of the proceedings rather than a continuous
transcript. |
The two Judges
presiding in the Appeal Hearing were Lord Justice Laws and Mr Justice Crane.
Acting for the defence were Michael Shrimpton and Quinton Richards, assisted by
Helen Jefferson. Acting for the prosecution (the "respondents") were Eleanor
Sharpston QC and Philip Moser (Sunderland), Simon Butler (Cornwall and Hackney)
and Fiona Darroch (Sutton).
Present in court
were the five Metric Martyrs, their campaign organiser Neil Herron and his wife
Lynn, the actor Edward Fox and Vivian Linacre of BWMA. Also present was Mr
Phillips from Cornwall Trading Standards, Tony Northcott of Sutton and other
representatives of trading standards. Sixty members of the public were in the
gallery, but many other supporters could not get in due to lack of space.
At various points
during the Appeal, the gallery was visited by BWMA patron Lord Monson, Donald
Martin of the Federation of Small Businesses, BWMA chairman Mike Plumbe,
butcher Dave Stephens (the first trader in the country to be served an
infringement notice for not using metric), imperial traders Peter Ellis and
Jose O'Ware, and UKIP representatives from the north east and MEP Nigel Farage.
The Appeal started
at 10.32am, Tuesday November 20th. There was humour when Lord Justice Laws
found he had thirteen folders of information when he was told that he should
have eleven. "Better than being short", said Michael Shrimpton. There was some
discussion as to the order of events. Lord Justice Laws noted that there was a
brief reference to himself in Mr Shrimpton's skeleton argument. Lord Justice
Laws said that he "wasn't inviting flattery" but asked whether anyone had an
objection to him trying the case. No-one objected.
The judge explained
that the previous day (Monday) had been taken up with reading skeleton
arguments, but there had to be "justice in public". Mr Shrimpton said there had
to be a balance between the "needs of the court and the need of those present
to follow it". Mr Shrimpton noted that the EC metrication law was now subject
to Qualified Majority Voting and that the pint and the mile could be swept
away. He also noted that the Leader of Sunderland Council had recently said
that traders can sell in pounds, although Mr Shrimpton recognised that this was
not the respondents' position.
The day was devoted
to Michael Shrimpton's appeal arguments on behalf of the traders. Mr Shrimpton
noted that there was "no dispute as to fact" in the case. In the case of
Sunderland, imperial scales were used; in the case of Hackney, Sutton and
Cornwall, pricing was by the pound.
For the first hour
of the case, both judges seemed hostile to Mr Shrimpton's line of argument. Mr
Shrimpton said that the 1994 metric regulations were an abuse of "Henry VIII
powers" which were intended only for minor matters. Lord Justice Laws noted
that the Henry VIII powers were a means of allowing the minister to amend Acts
without going back to Parliament, and Mr Justice Crane said that since Henry
VIII powers were granted to ministers by Parliament itself, how, therefore,
could they be illegal?
Mr Shrimpton said
that the Henry VIII powers were against the "spirit of the constitution", to be
used "only in limited circumstances". Lord Justice Laws said the purpose of the
court was not to "blow hot air about spirits" but to decide the law "with
teeth".
Mr Shrimpton said
there were "certain rules" and limits governing the use of Henry VIII powers.
While recognising Parliament as supreme, courts had to fulfil their
constitutional bounds to keep Parliament within the constitution. For instance,
Parliament could revoke judicial review, but courts would be bound to reject
this as unconstitutional.
Mr Shrimpton went
on to argue there were invalid uses of Henry VIII powers in 1972 and in 1985.
For example, Henry VIII powers could not be used to over-ride future acts. Lord
Justice Laws asked Mr Shrimpton whether he was arguing that Parliament could
not set aside future acts, and that the 1994 regulations [passed under the 1972
Act] were therefore extinguished by the 1985 Act. Mr Shrimpton said yes. Mr
Shrimpton said that if a minister could over-ride Parliament using Henry VIII
powers in order to implement EC directives, then Britain had effectively a
puppet Parliament. Lord Justice Laws said these points could be "well made in a
political assembly".
Mr Shrimpton raised
another objection in that Parliament is right to "keep an eye" on the Executive
when the Executive seeks to amend Parliament's laws. Mr Shrimpton said the
Executive secured the 1972 statute on the basis of certain assurances to
Parliament regarding the powers it involved.
Eleanor Sharpston
rose to say that it was "super abundantly clear" that imperial was being phased
out by EC directives in 1971, 1976 and 1980. Lord Justice Laws asked, "This
court has no power to say otherwise?" to which Ms Sharpson said yes (it had
not). Mr Shrimpton said it was not in dispute that the EC metric directive came
in under the EC Treaty (Article 100). After 1980, qualified voting was
introduced, meaning the EC could over-ride the UK. He said that this was not
merely a "jury point"; it was right for people in a country to what exactly
what their constitution is, and to know that the UK could be over-ridden. The
implications were "quite awesome". Judge Law agreed (impatiently) that the
public should know.
Mr Shrimpton said
that the representatives of the UK when signing the EC directive were Foreign
Office officials, not DTI. Lord Justice Laws dismissed this point, saying, "The
Crown is the ground". The Judge expressed some impatience and said it was time
to get to grips with the case.
Mr Shrimpton said
that the prosecution case was wrong when it said there was "no clash" between
the 1985 Weights and Measures Act and the 1972 European Communities Act. Mr
Shrimpton said there was indeed a clash, and charted the course of acts: 1863
allowing metric contracts; 1897 allowing metric for trade; 1963 provided for
joint imperial and metric use. In 1965, although the government announced that
it wished Britain to use metric, this was on a voluntary basis and no Act was
passed. In 1976, the Weights and Measures Act was amended so that 1963
restrictions on Henry VIII orders to add or remove imperial units was removed,
although this involved no great statement of principle. In 1979, the
metrication policy was abandoned. The Metrication Board was abolished in 1980.
At the same time as
the UK government was moving away from metric, EC directive 80/181was passed to
bring in metric and phase out imperial measures. Mr Shrimpton argued that this
directive was to later clash with the 1985 Weights and Measures Act that
consolidated the change in policy from 1979 with former legislation. Mr
Shrimpton said that the clash was not immediately apparent, since the
directive's enactment date was some years in the future (December 31st, 1989).
Mr Shrimpton's
explanation of events assumed that both imperial and metric could be used up
until the conversion deadline. However, Lord Justice Laws, reading the EC
directive noted that, in the run up to the deadline, metric appeared to be
outlawed. Mr Shrimpton said that was in his favour as Parliament had said both
systems could be used; he was "right for the wrong reasons" and was very
grateful to Lord Justice Laws for pointing the matter out. Mr Justice Crane
said wryly, "I'm sure you're grateful" [laughter], to which Lord Justice Laws
interceded, "You don't have to answer that!". Mr Shrimpton said that he was
always grateful for assistance.
Mr Shrimpton went
on to explain that supplementary indications would go in 2009. Lord Justice
Laws made the observation that since the EC policy was to require metric, a ban
on imperial supplementary indications was "disproportionate". This comment
brought murmurs of support from the gallery, including actor Edward Fox.
However, the Judge said that this was a moot point until 2009. Mr Shrimpton
said that, if they were still practising in 2010, they would recall the
conversation.
Mr Shrimpton noted
that the 1985 Weights and Measures Act did not consolidate UK and EC law,
merely the range of UK laws. Lord Justice Laws told him not to make such an
obvious point.
There was then an
exchange that seemed to BWMA observers in the gallery to alter the approach of
the Judges who were, up to this point, entirely sceptical. Michael Shrimpton
pointed out references within the 1985 Act to "multiples", that is, pricing and
selling in fixed amounts (eg "per 100 feet"). Lord Justice Laws made the
observation that appropriate uses of Henry VIII enabling powers could include
altering the multiples of units rather than taking out imperial or metric
altogether.
Mr Shrimpton agreed
with this, saying that minor changes could be made and certain minor units
could be removed or added, but in no way could the Act or its enabling powers
be construed as a "metrication law". Mr Shrimpton also said that the Act was
intended to enforce the correct calibration of scales and a uniform system, the
latter phrase meaning uniformity in units, so a pound in Queensland was the
same as a pound in Yorkshire. This did not mean the Act was intended to prevent
the use of either imperial or metric. Mr Shrimpton noted that the offence in
the Sunderland case was that Steven Thoburn's scales were not in kilograms, not
that they were incorrectly calibrated.
At various points,
Mr Shrimpton talked in depth about the Acts, causing Lord Justice Laws to tell
him to slow down: "I don't have the ability to think of more than a number of
things to any one time". Lord Justice Laws also told Mr Shrimpton on numerous
occasions to let him read relevant paragraphs for himself: "Get to the argument
after we've seen the material".
In a significant
aside, after the many complexities of the law were discussed, Lord Justice Laws
remarked, "If a member of the public wanted to know the law on January 1st,
2000…", and left the sentence in midair, clearly implying that the law was
unclear and obtruse. This led to some excitement in the gallery. The judge said
he was not making a theatrical point. He said that the law had to be
accessible, and it was as though there had been an attempt to obscure the
criminal element. This time, there was applause from the gallery.
At some point,
after Mr Shrimpton made a point that Lord Justice Laws did not consider
relevant, the judge said, "There is enough to think about in this case as it
is".
One of the
prosecution arguments that Mr Shrimpton sought to head off was that, if the
defence won, many Acts based on implied repeal would be rendered unsound. Mr
Shrimpton said there were only 20 such acts, and most of a minor nature. Lord
Justice Laws dismissed this consideration, saying that, "Judicial hairs will
not turn as to the consequences either way". The Court's role was to do its
"judicial duty".
Michael Shrimpton
said the 1985 Act impliedly the affected parts of the 1972 Act because of its
clear language. Ms Sharpston rose to say there could be no "implied repeal"
while the EC Act 1972 remains in place. Lord Justice Laws said, "I have a lot
of difficulty with that".
Lord Justice Laws
said that all acts are equal, although he added this was a "big debate". Mr
Shrimpton said Britain does not have "constitutional acts", just acts. Lord
Justice Laws remarked they were not in "year one of law school". Lord Justice
Laws said issue of parliamentary supremacy was irrelevant, only the mode of
operation by the minister was the issue.
The Judge asked
whether the 1985 Act "disabled powers in the 1972 EC Act". Mr Shrimpton said
yes, the 1985 Act "carved out an exception to the 1972 Act". In 1972, the EC
Act "occupied" the field of weights and measures. In 1985, Parliament
"re-occupied" it with the new Act. Parliament may or may not have been aware of
the EC directives, but the fact is that the 1985 Act was passed and this
created a clash with the 1972 Act that would later seek to implement the EC
directive.
Lord Justice Laws
said that there was no clash between the 1985 Act and the 1972 Act, because the
1985 Act had provisions for later amendments. Mr Shrimpton said there was a
clash, to which Judge Laws said, "Show me your best case".
With regards to the
prosecution's arguments, Mr Shrimpton referred to two of them: that
consolidation acts could not impliedly repeal; and that there was a hierarchy
of laws which placed the European Communities Act above other acts. Mr
Shrimpton went through case law:
- Housing Act 1925 - a
consolidation act which impliedly repealed an earlier Act.
- Income Tax Act - Court of
Appeal applied implied repeal to an Act involving an international treaty.
- New Zealand Human Rights Act
- parts of which were impliedly repealed by a later Act, thereby going against
the notion of a hierarchy of acts.
Lord Justice Laws
was at times impatient when Mr Shrimpton wanted to read out case law. He
regarded Mr Shrimpton's submissions as repetitive. Lord Justice Laws would say,
"Where do we go from here", and remarked that the weight of argument was
dependent on the weight of arguments, not the weight of books. However, once
explained, he seemed to recognise its significance. At one point he said,
"These are important passages".
Mr Shrimpton said
the 1972 Act was an ordinary act and subject to all the ordinary conventions,
and case law showed consolidation acts could repeal earlier acts impliedly.
Furthermore, community law could not be superior to UK law, since community
laws can take effect only through UK law. He also said all Community law was
secondary legislation, since it had to pass through the 1972 Act. Lord Justice
Laws said, "It may be right, we'll have to see, subject to Eleanor Sharpston's
arguments". He also said it was a "difficult and important case".
Lord Justice Laws
summed the issue up as a conflict between two statutes, the first giving a
minister enabling powers to amend future laws to comply with obligations, and a
later statute that runs counter to the first. Does the minister use the first
statute to repeal the latter, or the latter to repeal the former?
Day Two - November
21st, 2001
The second day of
the Appeal commenced at 10.40am. Lord Justice Laws apologised for the late
start, saying that he and Mr Justice Crane had been "anxiously discussing the
case".
Mr Shrimpton wished
to refer to Judge Morgan's judgement in Sunderland but Lord Justice Laws said
it was not relevant as, "We're deciding this case afresh".
Mr Shrimpton
referred to Hansard of 1972, relating to Parliamentary debates about the effect
of the Act: for instance, the "power of Parliament will not be affected because
it cannot be affected". Lord Justice Laws said this was not contentious.
Following another reference to the supremacy of Parliamentary sovereignty, Lord
Justice Laws said this (Parliament's sovereignty) was "obviously true". Lord
Justice Laws said this in a less than patient manner, since he regarded Mr
Shrimpton as saying the obvious. However, Mr Shrimpton advised that it was not
consistent was Judge Morgan's judgement which stated: "It is an indisputable
historical fact that when Parliament passed the 1972 Act she intentionally
surrendered her sovereignty to the primacy of EC law and made that part of our
domestic law".
(The gallery
suppressed its laughter when Lord Justice Laws asked Mr Shrimpton how far down
a page a certain Hansard quote was. Mr Shrimpton replied: "Five-eights, no,
three-quarters, maybe seven-eights. I'm trying to avoid using the metric
system").
Mr Shrimpton said
the EC Act 1972 was a derivative source of law, derived from Member States; it
was not a new source of international law. Mr Shrimpton said the 1972 Act was
passed by Parliament on the understanding that it would not alter the
sovereignty of Parliament and that Parliament could not bind its successors. Mr
Shrimpton read tracts from Hansard that showed Parliament had anticipated a
clash between UK and EU law and secured assurances from the government.
Mr Shrimpton said
that local authorities, if in any doubt, should have sought clarification of
the law. Lord Justice Laws said the issue was not whether local authorities
were in doubt but whether they were right or wrong. Lord Justice Laws said the
case "was a very important one", but told Mr Shrimpton not to repeat the same
points. The judge said Mr Shrimpton's points on the sovereignty of Parliament
were "wholly elementary principals".
On various
occasions, Mr Shrimpton expressed his humility and gratitude to Lord Justice
Laws.
Mr Shrimpton said
the laws of the EU were of "no relevance" and the Court should not even look at
the directive. The Court's duty was to apply the 1985 Act of Parliament. Lord
Justice Laws said that the "…heart of this case is the European
Communities Act".
QUINTON RICHARDS
At 11.55am, Quinton
Richards referred to Article 10 of the European Convention on Human Rights:
"Everyone has the
right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers…".
Mr Richards argued
that the compulsory metrication laws were an infringement of freedom of speech.
Lord Justice Laws said that the events to which Mr Richards referred (the
selling of foods in lb/oz) occurred before the Human Rights Act was passed in
October 2000.
Mr Richards said
that the Human Rights Act was retrospective as well as prospective. However,
Lord Justice Laws said he did not see how it was possible for the Human Rights
Act to apply since it was not the law of Britain at the time of the events in
question. Therefore, Mr Richards could proceed only on the basis that he
represented Mr Peter Collins of Sutton [Explanatory note: the Sutton case is a
civil rather than criminal matter in that Mr Collins was appealing against a
condition on his street trading licence that he uses metric, rather than
against a criminal prosecution].
[At a later point,
Eleanor Sharpston rose to say that Mr Richards was correct in that the Human
Rights Act could apply to the other four traders since it was retrospective.
Lord Justice Laws said Mr Richards should have told him at the time. However,
Lord Justice Laws said it still made no difference due to the 2009 issue].
Lord Justice Laws
said that the prohibition on displaying imperial units as supplementary
indications did not occur until 2009; therefore, the trader was not a victim
now. Mr Richards said that the understanding of weights and measures was
"essential to the transparency of the market". Mr Justice Crane conferred with
Lord Justice Laws for a few moments, after which Lord Justice Laws said that he
was "troubled by the concept that he [Mr Collins] is a victim". He asked Mr
Richards to show him his best case to illustrate how someone could be a victim
before a law affecting them came into effect. However, the case that Mr
Richards presented did not satisfy Lord Justice Laws on this point.
Lord Justice Laws
said that the metric legislation might lead to a breach of Article 10 in 2010,
but it was not one that the Court could consider now as it was a future event.
He read the magistrate's original verdict and this also said it was a matter
for a future court. Lord Justice Laws said that a lot of water and a lot of
bridges could pass before 2010. He asked the counsel for Sutton Borough to read
out their trading provisions to confirm that supplementary indications were
permitted. They were.
Lord Justice Laws
said he had "grave doubts" on whether the Court could adjudicate on matters in
ten years' time. Mr Richards drew a comparison with someone in danger of having
their home repossessed. Lord Justice Laws said that while he could understand
psychological impact, no proceeding before the Court could have any bearing on
what would happen in 2010.
Mr Shrimpton rose
to say that since the Human Rights Act was primary legislation, and the order
preventing supplementary indications from 2010 was a statutory instrument (ie
secondary legislation), the statutory instrument had to fall. Mr Shrimpton said
that this should happen now because while the statutory instrument did not take
effect until 2010, it had been made in January 2000. Lord Justice Laws did not
agree with this.
ELEANOR
SHARPSTON
At 12.46am, Eleanor
Sharpston, acting for Sunderland City Council made a clarification that she
never said that the UK lost its sovereignty when join the European Community,
only that Parliament accepted certain restraints. Parliament retained, she
said, sovereignty in that she could decline to be a member of the club.
Parliament could also expressly repeal laws. However, a consolidation act could
not impliedly repeal an earlier Act. She said she had no objection to the case
law presented by Mr Shrimpton since the dispute lay elsewhere.
Ms Sharpston said
the EC Act brought into play, or "imported", a new legal system. So long as the
1972 European Communities Act remained on the statute books, Parliament was
bound by it. Moreover, the EC Act entitles European courts to look at community
law (contrary to Mr Shrimpton's assertion that courts must look only at UK
law). It was, she said, a "new order of international law", and that it
contained conveys vires on a minister to implement EC directives.
Lord Justice Laws
said that Mr Shrimpton's argument was not that the 1985 act repealed the 1972
Act, but that the minister had no vires under the Henry VIII powers to amend
the 1985 Act. Eleanor Sharpston said that the EC Act was not a "substantive"
act but a "vehicle" and "extremely important". Lord Justice Laws said that,
according to Mr Shrimpton, there were no exceptions to the rule: whether the EU
was the "subject matter" was irrelevant. The issue appeared to be the scope of
the constitutional rule that Mr Shrimpton relied upon.
After lunch, there
was the following exchange: Lord Justice Laws: "If the price of Parliamentary
supremacy is that Parliament can divest itself of its supremacy, how can it
still be supreme? The baby of European law cannot be bigger than the mother of
the European Act". Ms Sharpston: "My answer to that has to be that if it is a
divesture of sovereignty, it is one subject to Parliamentary statute snatching
it back". [Note: use of word "snatching" by Ms Sharpston thought to be
correct].
Ms Sharpston said
the limitation of Parliament's sovereignty is accepted by its membership of the
EU, and the EC Act gives European law value. However, Parliament could at any
stage repeal the EC Act. Lord Justice Laws asked: if Parliament cannot abandon
its express power, how can it abandon its implied power? Ms Sharpston took the
court through a number of cases, including a 1964 judgement of the European
Court where a law derived from the European Treaty over-ruled a national law.
Ms Sharpston said that the EC Act created its own legal system and replaced
internal legal systems. It had real powers that limited or transferred
sovereignty and created a new body of law that combines the national states. It
was therefore impossible for national states to recall precedents to conflict
with EC law, because the law could not vary from one state to another. Ms
Sharpston said law from the Treaty could not be over-ridden by domestic
provisions without calling the European Commission into question.
Lord Justice Laws
said at one point, "I'm not sure the Court of Justice will accept that". He
said there may be situations where conflict arises but he saw, "no reason why
the law of the UK should give way to the law of the EU".
Ms Sharpston said
the protection of ultimate sovereignty of Parliament lay in its ability to
withdraw Britain from the EU by repealing the EC Act. Lord Justice Laws asked
what if a future amendment said the EU should exist in perpetuity and Member
States should have no power to withdraw. Ms Sharpston said that Parliament
would have to decide, as with previous treaties, whether it was prepared to
incorporate provisions of those laws. Lord Justice Laws asked what would happen
if Parliament agreed and then there was an election and the new Parliament
passed an act to withdraw. Ms Sharpston said that Parliament could pass the act
and withdraw, but it would become a matter for the international court. Lord
Justice Laws asked whether the later act was good and valid in domestic laws.
Ms Sharpston said it would be. Lord Justice Laws said that would concede that
UK law prevails in the event of a clash.
Ms Sharpston said
that while Britain remained a member of the club, it must comply with the
rules. It could reassert its sovereignty by an expressed act or ultimate
expression: "We denounce this treaty".
Lord Justice Laws
asked what if Parliament said the Common Fisheries Policy had no effect. Ms
Sharpston said the act could be passed but it would not go unchallenged. It
would be referred to the European Court in Luxembourg. Mr Justice Crane asked
what would a British court do. Ms Sharpston said in the circumstances of an
express act the court, unable to seek guidance from Luxembourg, would have to
decide which act to enforce. Lord Justice Laws said an English court would have
to obey the main legislature, regardless of the consequences to its EC
partners. The alternative would be that they are not obliged to enforce UK law.
Ms Sharpston said
that if Parliament wanted to change from its EC obligations, one would expect
express language. Lord Justice Laws summed up Ms Sharpston's points by saying
the sovereignties of Parliament and Europe could be reconciled via express
repeal. Ms Sharpston said that would be a way forward. Lord Justice Laws asked
whether it had to be express, not implied, no matter how strongly implied. Ms
Sharpston said yes. Lord Justice Laws asked, "If Parliament tore up the EC Act
by mistake, that would be undemocratic?" Ms Sharpston said yes.
Ms Sharpston said
the 1985 Weights and Measures Act was only a consolidation act of existing
material, including measures to apply the metrication programme. She went
through the history of the EC directives and the UK accession to the EU. At the
point of Britain's joining, Ms Sharpston said, it was clear that the rules on
metric were part of the wider rules of the EC that the UK accepted. In fact,
these rules were adjusted or "softened" for the UK, the metrication
implementation timescale being extended from five years until 1989.
Lord Justice Laws
asked whether the 1971 directive was phrased for metrication. Ms Sharpston said
yes, annex one contained metric measures. Lord Justice Laws asked whether the
public was told that the accession treaty would mean metrication. Ms Sharpston
said she was not a representative for the DTI. Lord Justice Laws mused that the
public were probably not told. Ms Sharpston said she thought there had been
public discussions. Lord Justice Laws said it was not something that was likely
to have been advertised in the Saffron Waldon Travelling Library [laughter]. Mr
Justice Crane said that to some extent it was up to the media. Ms Sharpston
said the metrication papers were not secret files.
Ms Sharpston
concluded by saying that anything Parliament can do, a minister can do under
section 2, subsection 2 of the 1972 EC Act.
Day Three -
November 22nd, 2001
Ms Sharpston said
that the European Act had internal vires (section 2.2) to implement UK
Community obligations. She said the Court had to consider: what did Parliament
actually intend section 2.2 to do? She argued that it must have been placed
there to do what it does. Lord Justice Laws said if there was "statute
prohibiting its own repeal", it would be good, "but we know it would be bad".
Mr Justice Crane,
the previous day, had asked whether there were any other acts that had "future
connotations". Ms Sharpston said she could provide an example in the Human
Rights Act that made provisions for changes to future Acts in order to ensure
compatibility. Ms Sharpston said that Parliament had put in place a technique
to incorporate an international treaty with a special nature. Lord Justice Laws
said he had a difficulty with that since the institutions of the EU were
"merely the product of EU parliamentarians". He said what is needed is a
principle in which it could be put in legal terms. Ms Sharpston said there were
certain areas where constitutional law does not equate express repeal and
implied repeal, and where express repeal was specifically required. Repeal
could not be made on the basis of a judicial decision on what might have been
an oversight. The repeal had to be "democratic" ie made expressly.
Lord Justice Laws
said the 1985 Act and section 2.2 of the 1972 European Communities Act may
appear to be in conflict. He said that the question was not which act had
greater force, but whether an administrative rule could work against amending
legislation in the future. Mr Shrimpton's view, he said, was that using Henry
VIII powers to amend future primary legislation was bad [Lord Justice Laws
referred to a "novel proposition" but it is not clear to what this referred].
Lord Justice Laws
said what "sticks in the craw" of a lot of people was that an "ancient and
treasured way of doing things can be got rid of without an act of Parliament".
Ms Sharpston said
she sympathised, but that the 1985 Act contained vires and the minister chose
to use those vires.
Lord Justice Laws
said that the way in which the criminal offences was created was "shameful". He
said that the word "Byzantine" had been mentioned, but he considered that to be
unfair to the late Roman Empire. Lord Justice Laws said that had he been the
judge sitting in the case, he would have regarded any prosecution as
"systematically abusive". He added, "It does look very troublesome".
Ms Sharpston cited
various authorities or judgements. Lord Oliver, for example, had said that if
Parliament had failed to comply with EC law, this is a result the court must
avoid. Ms Sharpston provided an example of an Act amended after 1973 using the
1972 Act, and quoted references that said anything short of an expressed
statement would justify a court in removing the inconsistency.
Lord Justice Laws
reiterated his concern about the "lack of accessibility". Ms Sharpston said
that the statutory instrument stated what it was doing.
Ms Sharpston gave
an example of a 1992 act being amended by secondary legislation under section
2.2 as there was a "mechanism within the Act for amendment". She said the
draftsman must have had section 2.2 of the European Community Act in mind. Ms
Sharpston also gave an example of a Henry VIII power being used in a "broad
way", as opposed to Mr Shrimpton's view that they were narrowly restricted. Ms
Sharpston said it was not clear that the 1985 Act was intended to reoccupy the
area held by the 1972 Act. She said provision could be made in Acts to say they
could not be amended by the 1972 Act.
PHILLIP MOSER
At 12.13pm, Philip
Moser for Sunderland (Ms Sharpston's junior), rose to speak. He corrected Mr
Shrimpton on the repeal of a particular Henry VIII power. One had been repealed
but not the one Mr Shrimpton referred to. Mr Shrimpton conceded this.
Mr Moser referred
to section 1 of the 1985 Weights and Measures Act:
"The yard or the
metre shall be the unit of measurement of length, and the pound or the kilogram
shall be the unit of measurement of mass, by reference to which any measurement
involving a measurement of length or mass shall be made in the United Kingdom".
Mr Moser posed the
question, "What does section 1 actually mean?" Mr Moser said, according to
Judge Morgan, section 1 was a "defining section" and does not have the power to
permit the pound. Mr Moser said if section fell, then Mr Shrimpton's entire
case falls. Mr Moser argued that the meaning of the section was affected by the
term "by reference to". He said the inclusion of this phrase meant the section
was a defining section. Lord Justice laws said it was included for grammatical
reasons [laughter].
Mr Moser said that
the pound is still in use, ie as a supplementary indication, and in the home
for kitchen and bathroom scales. Lord Justice Laws said there was nothing to
stop people from creating their own units in the home [more laughter]. He said,
under English law, "everything is allowed which is not forbidden, except for
public authorities where everything is forbidden which is not allowed". The
Lord Justice said it "was not much of a point", and that section 1 was
"assuming an existing legality". Mr Moser said it was assuming that the pound
could be used as a "supplementary indication in trade".
[BWMA note: Mr
Moser is almost certainly wrong on this point. Pounds and ounces can be used as
"supplementary indications" but they cannot be used "in trade". A supplementary
indication is merely a means of providing additional information. It is not
recognised legally for the purposes of contracts. It is for this reason that
local authorities, for example, reject planning applications that do not
contain metric units].
Lord Justice Laws
asked whether the EC directive required the use of criminal penalties. Mr Moser
said not, as enforcement was a matter for the government. He referred to a
Dutch case where the European Court ruled implementation was a matter for
Member States. Lord Justice Laws noted that there was no opposing argument from
Mr Shrimpton as to proportionality or implementation. Mr Justice Crane noted
that Mr Thoburn had made a principled stand. Lord Justice Laws said one is
offended when an important principle is not accessible, particularly in
criminal law. However, he added, that was not part of the case.
Lord Justice Laws
asked about the offences of short weighing and obstruction. Mr Simon Butler
(Cornwall and Hackney) said that if Mr Shrimpton was right, the offence of
obstruction against John Dove would fall, as the officer was not acting in
pursuit of her duty [when removing price tickets]. He said, however, that the
short weighing offence (against Colin Hunt), would remain.
[Note: This latter
point was despite an earlier submission by Mr Shrimpton that the short weighing
was a mistake arising from the use of metric scales when the pricing and trade
was being conducted in imperial].
In the afternoon,
Michael Shrimpton replied to the respondents' arguments. He said that
provisions under the European Communities Act 1972 could not affect acts in the
future since Parliament's power is a "present power and cannot be projected
into the future". Mr Shrimpton quoted an authority as saying "Parliament may do
as it pleases". Mr Shrimpton made reference to Acts relating to Canada and
Sierra Leone that reverse previous Acts.
Mr Shrimpton said
that the constitutional crises would be "enormous" if a Court made a
distinction between implied and express repeal. Lord Justice Laws said that the
real distinction was between provisions that were specific or general.
There was some
discussion on the use of the word "implied". Although Mr Shrimpton had been
using the term "implied repeal" [because the 1985 Act did not expressly refer
to the 1972 Act], he said that the words contained within the Act were express
in the sense that they were "clear".
Lord Justice Laws
asked whether there was a clash since the regulations allowed the use of
imperial as supplementary indications. Mr Shrimpton said supplementary
indications were a red herring. He said there was no immediate clash in 1995
because the provisions that came into effect that year affected only pre-packed
foods or loose non-food goods. With regards to pre-packed foods, these were
supplied mainly by supermarkets that supported metric conversion and were using
it anyway. With reference to loose non-food goods, such as carpets, the clash
was avoided since carpet retailers used metric with imperial as supplementary
indications.
It was only after
December 31st, 1999 that the "parallel tracks" of UK and EU law converged, Mr
Shrimpton said, when metric law applied to traders dealing in foods sold loose.
Parliament said traders could use the pound, EU law said they could not.
By using Henry VIII
powers to implement the EC directive, Mr Shrimpton said, a system that had been
used for 1,500 years had, "without any meaningful debate", been swept away,
affecting every shop, marketplace and gallon in the Bentley [laughter from
gallery].
Lord Justice Laws
asked whether Parliament knew what it was doing [with regards to the clash
between UK and EU law]. Mr Shrimpton said that the Courts must assume that
Parliament knows what it is doing, even if it does not.
Lord Justice Laws
asked why the Henry VIII powers under section 2.2 of the European Communities
Act was not available to the minister. Mr Shrimpton said because it was looking
to the future. Mr Justice Crane asked if Mr Shrimpton's view was that 2.2 could
not be projected to the future to bind Parliament's successors? Mr Shrimpton
said no, it could not. Lord Justice Laws said a later Act may use provisions to
deny section 2.2. He said section 2.2 does not purport to project powers to
bind future Parliaments, merely to allow ministers to amend Acts, subject to
clauses in Acts denying 2.2's intervention.
Mr Shrimpton warned
that allowing governments the use of Henry VIII powers to override future acts
was "incredibly dangerous". He described the scenario of governments,
anticipating future governments might repeal their acts, would put in clauses
specifically for the purpose of allowing them to reverse the repeal once they
were returned to power. This would mean they would not have to go back to the
new Parliament to seek new Acts. Mr Shrimpton said this would "unravel the
fabric of the constitution" and represent a "defiance of Parliament". He said
there was no greater abuse of a Henry VIII power, since it "placed the
Executive above Parliament".
Mr Shrimpton said
that, in the present case, a possible reason why the minister did not go to
Parliament to repeal the 1985 Act was because, "he was afraid he could not get
it through". If the government failed to comply with its EC obligations, Mr
Shrimpton said, it would be "quite proper" for the European Court to rule there
had been a breach of European laws. In these circumstances, Mr Shrimpton said,
although Parliament may be expected to enact new legislation, it may not be
willing to do this for democratic reasons ie the people do not support it.
Mr Shrimpton
responded to Ms Sharpston's reference to the 1998 Human Rights Act as another
example of an Act that can amend future Acts, Mr Shrimpton said the same
argument applied: Henry VIII powers could be applied only to pre-1998
legislation. Parliament could breach the European Convention on Human Rights if
it wanted to, said Mr Shrimpton, and cited an instance from 1531 where
Parliament authorised the boiling in oil of the Bishop of Rochester. Lord
Justice Laws said 1531 pre-dated the European Convention on Human Rights
[laughter].
With regards to Mr
Moser's construction point, Mr Shrimpton said that the 1985 Act was not an
elegant act, but its wording was "quite clear". Mr Shrimpton also referred to
Judge Morgan's judgement that said, "it would be difficult to have a common
market with two ways of measuring mass", and said that the UK and the US were
economically successful and have two ways of measuring.
Mr Shrimpton said
the Treaty of Rome is a treaty, not a source of law, and referred to European
countries that had not incorporated it into their constitutions. Britain had
not incorporated it into her constitution, it had incorporated it into the
European Communities Act. Treaty laws could therefore apply only within the
bounds of Britain's national law and sovereignty. In contrast, Ireland had
incorporated the Treaty into her constitution, therefore, there could be no
breach in sovereignty.
Mr Shrimpton said
that the EC, or the Common Market as it then was, was aware of Britain's
internal rules in 1972, and that it could never fully incorporate the Treaty of
Rome since it could only be combined with the British constitution via
Parliament and no Parliament could bind its successor. Any clash that might
later arise was a matter got governments to resolve, not the courts.
Lord Justice Laws
asked Mr Richards whether he had any further submissions. Mr Richards said he
had not.
The Court closed at
3.30pm.