“If the UK is sovereign then the Metric Regulations of 1994, 
imposed merely by Statutory Instrument in compliance with EC Directives, 
cannot be held to have overturned parliamentary legislation.”

A BANANA REPUBLIC?

Vivian Liancre

(This article was first published in the European Journal, Dec 2001) 

THE FIVE METRIC MARTYRS, having lost in their respective Magistrates Courts, brought a consolidated Appeal to the London Divisional Court, heard before Lord Laws and Mr Justice Crane on 20 to 22 November 2001.

The case seems bound to go from there to the House of Lords and perhaps also to the European Courts. The constitutional issue is so immense that it can probably only be resolved at the highest level. If the Appeal has succeeded, the government will be obliged to pursue it further, if only in deference to the EU. Moreover, at the domestic level, Sunderland City Council (which prosecuted the leading case) is under extreme pressure to seek to recover its costs to date, exceeding the astonishing figure of £95,000, which it cannot do except by spending additional huge sums of council-tax payers’ money. Whereas, if the Appeal has failed, the convicted traders will certainly take it to the Lords and also to the European Court of Human Rights. 

Ultimately, therefore, the forthcoming judgement – which is expected to be handed down soon – is of little consequence.

Miss Eleanor Sharpston QC, who led for the four respondent local authorities, appeared to have shifted her ground since appearing for the prosecution at Sunderland. Then she said: “In 1973, having signed the European Communities Act, the UK ceased to exist as a political entity”. District Judge John Morgan, in his Judgement on 9 April, upheld her argument that: “As a once sovereign power, we have said that we want to be bound by Community law,” and “It is an undisputable fact that when Parliament passed the 1972 Act she intentionally surrendered her sovereignty to the supremacy of EC law,” and “ This country quite voluntarily surrendered her once seemingly immortal concept of the sovereignty of parliament and legislative freedom by membership of the EU,” and “It would destroy the concept of the Union if member states could go off on legislative frolics of their own.” 

Yet at this Appeal she insisted that the UK remained an independent sovereign nation, and that there was no conflict because all that had happened was that we had undertaken to absorb EU law into UK domestic law [and] that the ECA 1972 was passed in order to provide a vehicle for that purpose. How that interpretation can be reconciled with District Judge Morgan’s obiter dicta remains a mystery; but not nearly so mysterious as how independence as a sovereign nation can be reconciled with a permanent commitment to incorporate whatever legislation the EU chooses into our own domestic legal system. It is rather like trying to convince an insurance company that one’s house is perfectly secure after announcing that the back door will be kept permanently wide open! 

She’s plainly fudging. Either the UK is sovereign or it is not. If it is, then the Metric Regulations of 1994, imposed merely by Statutory Instrument in compliance with EC Directives, cannot be held to have overturned primary parliamentary legislation – the great Weights and Measures Act of 1985 which authorised both imperial and metric units in equal sets of alternatives. If this is the case then the Regulations are ultra vires, null and void, and so the Appeal must succeed. But if the Appeal fails, because the UK’s sovereignty is forfeit, then QC’s are changed to EC’s and – with reference to Steve Thoburn’s prosecution –Britain has become a banana republic. 

But that cannot be so. Otherwise, how would we have taken unilateral military action in Afghanistan, in support of the USA and as approved by the UN and NATO, without reference to the EU? How would we have done likewise in the Gulf War? How could we have fought the Falklands campaign on our own, despite opposition from our Community ‘partners’? Do District Judge Morgan and Miss Sharpston dismiss as inoperable the various international treaties that, as a sovereign state, we have signed with other sovereign states since 1973?

Both District Judge Morgan eight months ago and now Lord Laws emphasised that, although EU law is superior to UK law, our Parliament can simply withdraw from the EU by repealing the 1972 ECA at any time. But how can that be? If Parliament is free to repeal that Act, then it must be sovereign. In which case there is no need for it to repeal the Act! But if it is not sovereign – if the UK legislature is subordinate – then it cannot have the power to free itself from the superior legislature! Let us hope that the House of Lords puts a stop to this fudging. 

It is worth recollecting that during the lengthy passage of the European Communities Bill, absolute assurances were given that make a nonsense of District Judge Morgan’s Judgement. Geoffrey Rippon, co-signatory of the Act that took is into the [then] EEC, declared (Hansard, 15 Feb ’72, p270) “The House as a whole may therefore be reassured that there is no question of this Bill making a thousand years of British law subservient to the Code Napoleon”; after the Lord Chancellor has stated (Command Paper 3301 on “The Constitutional Implications of British Membership of the EC”), “There is no reason to think that the impact of Community law would weaken or destroy any of the basic rights of individuals under the law in the UK”; and he declared during the debates on the Bill (Hansard 25 July ’72 col 1233), “There is nothing in this Bill, I believe, which derogates from British pride, from British traditions, from British honour or ….. from British sovereignty…”; and he further ( 7 August ’72, col 912) quoted a dictum of Lord Beswick, as quoted in turn by Mr Shrimpton, Counsel for the Appellants, “If no statute can establish the rule that the courts obey Acts of Parliament, similarly no statute can alter or abolish that rule”; and again (12 Sept ’72, col 291) “it is not possible to derogate from the sovereignty of Parliament”; and yet again (12 Sept, col 293) “Instead of a written Constitution we have the sovereignty of Parliament. That is our safeguard”; and finally the great Lord Denning, in a subsequent judicial interpretation of the Act agreed, “The Treaty [i.e. the Treaty of Accession which was not incorporated into UK law by the ECA of 1972] does not touch any of the matter which concern solely the mainland of England and the people in it. These are still governed by English law”.

Yet legal validity of the Metric Regulations depends, as District Judge Morgan’s Judgement made clear, on the presumption that UK sovereignty had been sacrificed to the EEC! 

As recently as 5 February 1998, during a Lords debate on the enforcement of metrication, the Government Minister Lord Haskel stated (col 742) “My Lords, of course the Government do not intend that people should be locked up simply because they do not use metric units of measurement….It is where local authorities find evidence of fraud or the consumer being misled that such matter can be brought before the court,”  and again (col 744), “My Lords, traditionally the use of fines directed towards those shopkeepers who intend to mislead or defraud the public in some way by mixing up the measurements they use.”

Well none of the five convicted traders was accused of any fraud, and it is only the use of metric measure that misleads the public. So these prosecutions were brought by a few exasperated, gung-ho local authorities solely as a warning to the 20,000 other people or more honest retailers who happily continue to serve their customers in traditional measures. 

Naturally, those small businesses were carefully targeted by their Councils who assumed they would lack the funds to defend themselves. It never occurred to them that so far from suppressing use of imperial units, these prosecutions would cause an explosion of popular outrage and a massive defence fund. This is now constituted as a Trust, with independent Trustees, solicitors, bankers, and sevral Patrons including Lord Tebbit, Andrew Roberts, Christopher Booker, Richard Littlejohn, Sir Stirling Moss, Elaine Paige, Edward Fox, Sir Patrick Moore, Zac Goldsmith, myself (representing BWMA), et al. To date, over 15,000 donations have been received from throughout the world (with no corporate backers and no major individual benefactors), amounting to some £275,000 which just covers total expenditure, including costs of the Appeal and all contingent liabilities. Obviously, if we go to the Lords and European Courts, we shall have to raise as much again. (The address is: Metric Martyr Defence Fund, PO Box 526, Sunderland, SR1 3YS ). 

It s imperative that compulsory metrication is eventually defeated; not only in the interests of consumers and small traders, not only for the sake of freedom of commercial speech and freedom of choice, not only to preserve an essential part of our language and cultural heritage, not only because the imperial system springs from the same source as the measurement of music and time – and the mathematics of the human mind and the computer – but also, most urgently, in order to demonstrate conclusively and unequivocally that Britain remains, de jure as well as de facto, and independent sovereign nation. This will, indeed, strike at the root cause of the compulsory metrication process, which never had anything to do with trade or consumer interests but was always purely political. 

It was the Director-General, Martin Bangemann, the EC’s Commissioner for Industry (one of those who did NOT get their jobs back after the Commission resigned en bloc) who let the cat out of the bag when I was dealing with him and his Metrology Unit at Brussels in 1996-7. He explained that “Britain is in an anomalous position – on the one hand being a partner in the EU but on the other hand sharing a common system of weights and measures with the USA, thereby gaining an unfair competitive advantage in transatlantic trade.” Clearly it is bad enough that we share a common language with the world’s superpower – which the EU can do nothing about – but our common system of weights and measures IS something they can deprive us of. The response from successive British governments, of course, has been: “Yes, it is plainly iniquitous that we enjoy the huge commercial and cultural bonus of a common system of weights and measures with the USA, and we must therefore get rid of it.”

That is, indeed, the only possible explanation of the entire sad history of compulsory metrication, ever since (a) the statement of intent in 1965, during the short Parliament of 1964-66, when Wilson – desperate to succeed where Macmillan had failed – was preparing Britain’s second application to join the Common Market, which De Gaulle again rejected in 1967, and (b) Heath’s White Paper on ‘Metrication’ in 1972, coinciding with his finally successful application, and (c) the meeting of the Council of Ministers at Brussels in November ’89, at which the principal metrication Directive was nodded through; when Britain was represented, not by Ministers from the DTI, but by the Foreign Office team of Hurd, Chalker and Maude. As a DTI senior civil servant once remarked to me: “We are here forever trailing after the Foreign Office, with a shovel in one hand and a bucket in the other, clearing up the messes they leave behind.” That is a perfect description of the compulsory metrication process. 

This cannot go on. Short of re-negotiating the Directives (an unrealistic idea), the BWMA sees three possible ways out: 

1                     Declaration of a moratorium, whereby regulations would remain in place but enforcement would be suspended indefinitely, a solution loosely referred to as the Canadian compromise – not ideal but an effective stop gap.

2                     The USA solution, which is mandatory dual-marking, the two systems enjoying equal status – which the BWMA increasingly tends to favour; or

3                     De-authorisation of weights and measures altogether, leaving regulation to our copious and robust codes of anti-fraud and consumer protection legislation.

Meanwhile, the circus moves on.