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Right to Appeal rejected by Law Lords

Proceedings commenced at 11am in Committee Room 1 in the House of Lords. Present were Neil Herron, campaign manager for the Metric Martyr traders and about twenty members of the public and law students. BWMA was also represented.

The three law lords presiding were Lord Bingham of Cornhill, Lord Steyn and Lord Scott of Foscote.

Mr Shrimpton, representing Sunderland greengrocer Steven Thoburn, said that the means by which the Divisional Court had ruled that there was no conflict between the European Communities Act 1972 and the Weights and Measures Act 1985 was that there was a "hierarchy of laws". So, while the Divisional Court found that the 1985 Weights and Measures permitted the pound and the yard, it resolved the conflict by saying that the 1972 Act was a constitutional act and therefore overruled the later act.

One of the law lords said to Mr Shrimpton that the 1972 Act gave powers to the executive wide enough to allow the amendment of subsequent acts. Mr Shrimpton said that Henry VIII powers could not be projected into the future.

One of the other law lords asked: could not Parliament refer to the 1972 Act when legislating for later acts, thus allowing them to overrule earlier acts? Mr Shrimpton said that no such formula was needed for Parliament to repeal earlier acts; implied or express repeal are the same thing in this respect.

Mr Shrimpton was asked: did not the 1985 Act contain provision to remove units of measurement? Mr Shrimpton replied (slightly exasperatedly) that it did not contain a provision to remove the whole imperial system; this was why the minister used the 1972 Act.

Michael Shrimpton said that the Divisional Court's reconciliation of the two Acts was based on projecting the power of the 1972 Act into the future. Mr Shrimpton acknowledged that the 1972 Act referred to acts "past or to be passed", but said this did not matter: "Parliament cannot do it", Mr Shrimpton said; when considering law, the courts had to look at the later acts. If the later Act is clear, it must take precedence, because Parliament cannot bind its successors. It was impossible, Mr Shrimpton said, for a minister, using Henry VIII powers under a 1972 Act, to repeal a later statute.

The law lords asked whether Mr Shrimpton accepted that the Factortame case limited the power of the Queen in Parliament. Mr Shrimpton said that it did, since the Merchant Shipping Act should have overridden the 1972 Act; however, Mr Shrimpton also pointed out that implied repeal was not argued by the government.

Mr Shrimpton accepted that, on the face of it, the 1972 Act sought to bind future Parliaments. One of the law lords asked what he meant by "on the face of it". Mr Shrimpton said that, while the 1972 purported to bind future Parliaments, no Parliament could bind its successors, since Parliament's power was a present power; it existed in the present.

Mr Shrimpton was asked whether any other constitutional lawyer questioned Factortame. Mr Shrimpton said none, aside from the present counsel. Mr Shrimpton said there was a tendency to accept the decision on face value, without considering how it was reached, and that the obvious defence, implied repeal, was not argued.

The law lords expressed puzzlement over a point; in order to implement EC directives, the government could use one of two routes, a regulation under the 1972 Act, or a new Act of Parliament. Mr Shrimpton was asked if he was aware of the criteria? Mr Shrimpton replied that one of the two routes could be chosen a case-by-case basis. He said he thought it possible that the 1972 Act was used in the case of metric conversion for political reasons, such as the possibility that the government might not get the legislation through Parliament. Whatever the reasons, the minister used the Henry VIII power to produce a wrecking amendment.

Mr Shrimpton said the case of Factortame was not relevant because it did not address the constitutional point. The metric martyr case was of enormous public importance; to rule that Henry VIII powers could repeal a later act would generate a constitutional crises. For these reasons, Mr Shrimpton said, the issues could not be argued in half an hour before the Appeal Committee.

Eleanor Sharpston

Eleanor Sharpston QC, acting for Sunderland City Council, said there was no inconsistency between the two Acts in 1985 when the Weights and Measures Act was passed. This was because the 1972 Act was not due to take effect until 2000. There was a future conflict, she said, but not an internal conflict in 1985.

She told the law lords: "If there is no inconsistency, there is no right to leave of appeal". She added, "It is a case of interest to academics and constitutional lawyers but not your honours' house".

Eleanor Sharpston further argued that since the 1985 Act was a consolidation act, it did not presume to change the law.

There was also no inconsistency, she said, between the general power of amendment in section 2(2) of the European Communities Act 1972 and the later provision providing for the use of certain weights and measures in section 1(1) of the 1985 Act. Ms Sharpston said Parliament could delegate the power to amend primary legislation and did so successfully in this case.

Ms Sharpston was asked why the government passed the metric regulations in the way that it did. Ms Sharpston said she had been asked the same question by Lord Justice Laws, and could not answer. She was counsel for Sunderland City Council, not the government.

She said that European Court judgements made it clear that any question as to the meaning or effect of EC directives should be treated as a matter of law.

Ms Sharpston said that statutes such as the 1972 European Communities Act and the 1988 Human rights Act were vehicles to bring in obligations arising from international treaties. It strained the rule of implied repeal, she said, for a consolidation act to repeal a vehicle.

Mr Shrimpton made a reply lasting around 5 or 10 minutes. He said there was very clearly a conflict between the two Acts: he, if asked for advice, would say that Mr Thoburn could sell in pounds and ounces, while Ms Sharpston would say Mr Thoburn could not. Mr Shrimpton asked: "The 1985 Act says you can sell a pound of bananas and the 1972 Act says you cannot. How can there be no inconsistency?"

Mr Shrimpton said that the "hierarchy of acts" was not in any of the prosecution submissions. When Mr Shrimpton had said in the Divisional Court that there was no hierarchy of acts, Lord Justice Laws replied, "We are not in the first year of law school". Mr Shrimpton said that Lord Justice Laws' ruling was, nevertheless, based on this concept. One of the Law Lords remarked to Mr Shrimpton that perhaps they were in the third year of law school.

Mr Shrimpton said that, if Lord Justice Laws' ruling was upheld, it would mean that a Court would be free to depart from the words of an Act of Parliament. This would be a "revolutionary decision" with awesome consequences. There would effectively be a new constitution for Britain, yet there had been no revolution, no war, no defeat, no occupation. Mr Shrimpton noted that Lord Justice Laws had said he (Shrimpton) had argued the case with passion. Mr Shrimpton said he accepted that criticism.

Mr Shrimpton said that the New Zealand Court, whose legal system is closest to Britain, had ruled that Human Rights legislation was not protected from implied repeal. All other European Union countries had implied repeal. Mr Shrimpton asked that leave be granted so that the arguments could be fully argued.

The Law Lords retired to consider their decision and returned about fifteen minutes later at approximately 12.15pm. In a statement lasting less than a minute, they said that leave to appeal was refused. No reason was offered, except an indication that they did not consider that the appeal would "give rise to points capable of reasonable argument".

There were murmurs of "shame" and "disgrace" from members of the public as they left the committee room.

After the hearing Neil Herron, spokesman for the Metric Martyr Defence Fund, described the decision as "outrageous". He said, "This is the death of democracy in this country. The next step is to take this to the European Court of Human Rights". After telephoning Mr Thoburn to inform him of the Law Lords decision, Mr Herron said that Mr Thoburn would continue to defy the regulations in accordance with British law. Mr Herron said that Mr Thoburn hoped that the politicians would let mass murderers out of prison to make room for the honest, hard-working greengrocers who were the backbone of the country.

"The politicians have given away the democracy of this country to another authority", Mr Herron said.

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