Before I give my
decision and reasons in this case I would first of all like to say one or two
things.
First of all I
would like to thank Miss Sharpston Q.C, Mr. Shrimpton and Mr. Moser for their
most kind help and assistance in this case. Especially for gently and patiently
leading me through the plethora of commentaries, Statutory Instruments, Council
directives, European and English case law, primary legislation and other
documentation, which are rarely seen or referred to in Magistrates' Courts. I
would also make mention of their thoughtful spirit of goodwill in which they
have conducted these proceedings, although vigorously and eloquently doing
their professional duty and defending their own corner.
Secondly, it has
been made clear to me that whatever the decision of this court the matter will
be taken elsewhere. It would seem sensible that when there is no dispute as to
facts, as here, and subject to certain safeguards and conditions, that there is
a complex legal argument before the court, a procedure should exist by which
this Court could be by-passed. Rather in the same way that indictable only
criminal matters are now transferred to the Crown Court. If there are two
factors that give rise to constant criticism of the legal system it is the time
taken for matters to be dealt with by the courts to finality and the cost of
the same. By not having a bypass system, it would seem that this case is set to
drag on. It may be a coincidence but I find that many of the cases to which
this procedure would be appropriate involve prosecutions brought by Local
Authorities.
Thirdly, I made
this observation. Some weeks ago, I was listening to a programme on the radio,
it featured a Court case and it sounded fascinating. It was only when the
particular item had finished did I realise that it was a case I was trying - in
fact it was this case. Such were the inaccuracies of the statements uttered
that I was in a state of bewilderment. Let me make it clear - bananas can be
advertised for sale by the pound, subject to certain rules as to the prominence
of such adverts compared to sale in metric measurements. Scales can be
calibrated in the Imperial System but, if they are, the prosecution say they
must also be calibrated in the Metric System. Whatever the law today, and that
is what I have to decide, it will no doubt change.
It would therefore
seem that a sensible starting point would be the summonses that Mr. Thobum
faces. They are two in number. They allege:
"On 4 day of July
2000 at The Market, Southwick, Sunderland in the County of Tyne and Wear, you
did have in your possession for use for trade a non-automatic weighing machine,
which did not bear a stamp, indicating that it had been passed by an Inspector
or approved verifier as fit for such use, which was not defaced otherwise by
reason of fair wear and tear".
I said there are
two summonses and so there are. Both summonses are framed in identical language
and each summons relates to a different weighing machine - commonly called
scales - the first summons relating to a system 30 weighing machine, serial
number 190073 and the second relating to an identical machine but with serial
number 290412.
Due to the most
helpful co-operation of the defence, the facts are not in dispute. In fact, no
evidence has been called by either side. The five days of the hearing being
take up with legal submissions. The facts have been agreed and a section 10
Criminal Justice Act 1967 admission filed with the court.
It is not necessary
for me to recite them in full but the salient facts are as
follows:
- Mr Thoburn is a greengrocer
who possesses scales with which to weigh his customers, purchases.
- On the 16th of February 2000
he was visited and warned by a Principal Trading Standards Officer of the City
of Sunderland that his scales were not correctly calibrated in that they did
not measure in metric units.
- On the 31st of March 2000 he
was visited by another or the same representative of the City of Sunderland who
obliterated the stamps on his weighing machine because they were still not
calibrated to measure in metric units. Because of this act of obliteration, he
informed Mr. Thoburn the machine, (that is the scales) were no longer fit for
use for trade.
- On the 2nd of June 2000 an
inspector from the City of Sunderland visited the premises and warned the
defendant of the legal consequences of using unstamped weighing machines.
- From the date of what would
seem to be his first warning on the 16th of February 2000 to the date referred
to in the summonses, that is the 4th of July, the defendant continued to use
his weighing machines, which were only calibrated to measure by the imperial
pound and ounces.
- On the 4th of July a Consumer
Protection Officer purchased a bunch of bananas for thirty four new pence which
were priced at twenty five pence per imperial pound, and the same were weighed
upon one of the aforementioned weighing-machines which had had its stamp
obliterated on the 31st of March 2000. And so commenced the court case of
possibly the most famous bunch of bananas in English Legal History.
- To complete the picture the
two sets of weighing machines were seized later that day, when a representative
of the City of Sunderland visited the premises accompanied by two Police
Officers.
The prosecution
alleges in the two summonses that Mr. Thoburn has committed offences Contrary
to Section 11(2) of the Weights and Measures Act 1985.
On the first day of
the trial Miss Sharpston, who had already filed a document called "Prosecution
Skeleton" opened by explaining how it is that Section 11 (2) of the Weights and
Measures Act 1985 constitutes an offence.
The opening took
just over one and half-hours and was one of sparkling clarity by leading
counsel, an expert in these matters. That opening I am sure, and I hope I am
not being discourteous, was not ex tempore, but I imagine involved careful
research.
Yet the path
through this legislative maze was one of Byzantine complexity. If any
legislative assembly was seeking to confuse the public as to what was happening
or what the law is, I can not think of a more perfect way of going about it. I
would challenge any greengrocer in Sunderland or elsewhere or anybody to whom
section 11(2) could apply to find out why it is an offence or if it is an
offence. I doubt if any would succeed. The law, and we must remember we are
dealing with the Criminal Law, a breach of which carries punitive measures,
should not only be understood but also be accessible to all. For over one
hundred and fifty years there has been debate of a Criminal Code, as found in
some foreign jurisdictions. If any case highlights the need for such a code, so
members of the public know what is lawful, then it is this one. The law should
easily be available and understood by all, not only lawyers, constitutional
experts and patient academics. In this case the prosecution, and quite rightly
so, have had to explain to court the legislative background to the offence. Not
only was reference made to the Weights and Measures Act 1985, which in any
event was a consolidating Act, but to:
- 19 Texts and Commentaries
- 89 reported cases from 1661
to the present date
- 6 Treaties and Conventions
- 16 Acts of Parliament
- 21 Directions and Statutory
Instruments
- 3 Other reports
I would very much
doubt if any, let alone all the above statutes, instruments and directions were
at the fingertips of greengrocers in Sunderland or elsewhere. And all this
documentation is to say that certain goods have to be weighed in scales
calibrated in the metric system.
Again the defence
in a spirit of splendid co-operation accepts the legislative route from A to Z
but challenge the validity of the same, arguing that if one Statutory
Instrument fails, then like a pack of cards, they must all fail. I should add
that the defence have done all that is possible to assist by simply going to
the issues involved without requiring the prosecution to prove everything. This
would have been an arduous time-consuming task. In short the defence do not
seek to challenge what the law says, so what is their objection?
The defence have
taken me on a long journey down constitution lane arguing that, because of
Parliamentary Sovereignty, doctrine of entrenchment and implied repeal, the
abuse of so-called Henry VIII powers and the law relating to international
treaties, no offence has been committed.
In giving my
decision it is not possible for me to refer to all the many authorities quoted
by both the defence and the prosecution. By not doing so I mean no discourtesy.
I would also add that at one time it was argued that there where issues of
vires were raised, as in this case, the vires of a regulation, then such
argument could not be considered by Magistrates or indeed the Crown Court on
appeal where relevant to the defence. It would seem that Boddington -v- Bristol
Transport Police (1997 - 2AC 143) and other cases have now reversed that old
rule.
Let me briefly look
at the history of weights and measures in this country to include both the
imperial and metric system - this is relevant especially when looking at Henry
VIII powers.
A Weights and
Measures Act was passed about 1864. I do not have a copy of that piece of
legislation, but it referred to the dual system of imperial and metric weights.
Since that date, subject to exceptions I shall refer to later, citizens have
had freedom of choice of which of the measurements to use. This country adopted
the imperial system. In the 1950's some industries went metric. On a personal
note, at Oswestry School in the 1950s, I learnt the metric system as part of my
education in mathematics. In 1972 we entered the E.E.C where most countries
used the metric system. A Metrication Board was set up but came and went
without much success. There was a Weight and Measures Act in 1963 but this was
amended following the coming into force of the European Communities Act 1972.
The amendment was the all important Weights and Measures Act 1976 which in
section 1(1) gave the Secretary of State power to amend Schedule 1 to the 1963
by adding to or removing any unit of mass or weight. This was an early sign of
Parliament's proposal to go metric and so comply with European Directives but
more of this later.
I mention these
facts because part of the defence argument is that section 1 of the Weights and
Measures Act 1985 entrenched the imperial system of measurement of mass in this
country and is an implied repeal of the European Communities Act 1972. In
addition, the defence argue that the powers, exercised by the Secretary of
State, as referred to in section l (1) of Weights and Measures Act 1963 and
subsequently consolidated in section 1(3) and 8(6) of the Weights and Measures
Act 1985 (current version), are an abuse of his Henry VIII powers. The defence
argue that the exercise by the designated minister of King Henry VIII powers
has brought about such a dramatic change to our culture and heritage that the
Minister overstepped the mark and the powers he exercised were ultra
vires.
We know that in
this country there has been a dual system for the measurement of mass. The
coming to prominence of metrification, in accordance with European Directives,
state the prosecution, is not the coming to prominence of a system of
measurement that is unknown to or alien to this country. It has been here for
nearly one and a half centuries. In the European Union metrification is
compulsory. There has always been a choice, but I will show later how this
choice has been eroded. When Ireland agreed to go metric, that left only the
United Kingdom using the imperial system in the European Community, although it
is still used in Canada and the United States. I will show later how it was
proposed from our entry into the E.E.C in 1972 for this country eventually to
go metric.
Let me see why the
defence accept that on 30th October 1985 the Weights and Measures Act 1985
enacted by the Queen in Parliament and, in accordance with tradition, coming
into force one minute after midnight on the 30th January 1986, argue that it
repeals the European Communities Act 1972 by entrenching the imperial system
and the subsequent powers exercised by various Secretaries of State, have been
exercised ultra vires. To some extent the defence have drawn a line under that
piece of primary legislation and have regarded all subsequent Statutory
Instruments stemming there from as being ultra vires, that is,
unlawful.
Can they do this?
How do they seek to do this? First of all one has to turn the clock back to
1972 when the European Communities Act 1972 came into force. This of course
relates to this Country's entry into what was once called the European Economic
Community - the Common Market but is now called the European Union. Let me
recite the all-important Section 2(2):
"Subject to
schedule 2 of this Act at any time after its passing Her Majesty may by Order
in Council, and any designated Minister or department may by regulation make
provision: -
(a) For the
purpose of implementing any community obligation of the U.K. or enabling any
such objection to be implemented, or of enabling any rights enjoyed or to be
enjoyed by the U.K. under or by virtue of the treaties to be exercised,
or
(b) for the
purpose of dealing with matters arising out of or related to any such,
obligations or rights or the coming into force, or operation from time to time
of subsection (1) above.
And in the
exercise of any statutory power or duty including any power to give directions
or to legislate by means of orders, rules, regulations or other subordinate
instrument, the person entrusted with the power or duty may have regard to the
objects of the Community and to any such obligation or rights as aforesaid."
The power to make
subordinate legislation, and of course many of the Regulations in this case are
embraced in that definition, are conferred by sub 2(2) above which is needed to
implement certain provisions of the treaties and community instruments which do
not have direct applicability and to supplement certain provisions which are
directly applicable.
When considering
the European Communities Act 1972 it is necessary, in addition to section 2(2)
to also consider for our purposes sec 2(4): (I paraphrase)
"The provision
that may be made under section 2(2) above include - any such provisions (of any
such extent) as might be made by Act of Parliament, and any enactment passed or
to be passed, other than one contained in this part of this Act, shall be
construed and have effect subject to the foregoing provisions of this section,
Schedule 2 shall have effect in connection with the powers confirmed by this
Act the following sections of this act to make Orders in Council and
regulations".
By joining the
European Union we took on board all existing jurisprudence and took on law that
was fundamentally different from International Treaties. The above quoted
sub-sections provide a general power to make subordinate legislation. Later on
the Act refers to a list of Orders in Council and regulations made, or partly
made, under this section and are listed. They include Units of Measurement
Regulations 1994 SI 1994/2887 as amended and Units of Measurements Regulations
1995 SI 1995/1802.
The defence argue
that this piece of legislation sought to prevent future Parliaments from
enacting measures contrary to the United Kingdom treaty obligations. In the Van
Gend en Loos case (case 26/62 1963 ECR 1) - a case I shall deal with later - it
was held that Community Law Regulations and Directions passed in Brussels, take
precedence over conflicting national law. However, the defence say that one
Parliament can not bind a future Parliament - that is, no Parliament can pass
an Act that is entrenched. The expression in section 2(4) above of if enactment
passed or to be passed" is a clear expression of looking to future legislation
that was in 1972 not even contemplated let alone in an embryonic state. But
this is precisely what has happened under sec 2(2)(4) of the European
Communities Act 1972. Power is given to the designated Ministers to make Orders
in Council in relation to Acts on the statute books or to come to the statute
books. Most of the subordinate legislation previously and to be referred to
have been made by Order in Council, So where is the difficulty?
In 1963, a Weights
and Measures Act was passed. Between then and the 1985 Weights and Measures Act
(which was a consolidation Act) there was also passed the Weights and Measures
Act 1976 previously referred to. A consolidation Act, although a piece of
primary legislation, follows a different course through Parliament compared to
other pieces of primary legislation. Consolidation means to gather in one place
material relating to, in this particular case, weights and measures. What is
important is that there is no change to the existing law. It is therefore not
possible to read into the 1985 Act as some intention on behalf of Parliament to
touch or to vary the pre-existing law - more particularly the European
Communities Act 1972. To bring about a consolidation Act requires, as
previously referred to a particular and abbreviated procedure in Parliament but
it cannot change the law and therefore has no effect upon the 1972 Act. It is
argued, and I believe rightly so, that the doctrine of implied repeal is not
relevant where there is a consolidation Act - simply because nothing is being
altered. Implied repeal is where new legislation is in conflict with earlier
legislation but makes no specific reference to that earlier legislation as
opposed to express repeal where it does so refer. I agree that generally if the
two Acts do not stand together you look at the language of the late Act, as
happened after the awful tragedy of Dunblane in the case of R-V-Secretary of
State for the Home Department ex-parte Burke 1999. But that is not the position
here, Subsequent European case law, to which I will refer later, and the fact
that this is a consolidation statute will bear witness to this.
At this point I
would add that I do not think it is necessary for me in this judgement to apply
the rule in Pepper -V- Hart (I 993) AC593. I know that Hansard has been quoted.
I am not satisfied that the criteria is made out here. The defence accept that
the Act is a consolidating statute and there is no ambiguity (page 4 Paragraph
4 Skeleton argument).
Section 1 of the
Weights and Measures Act is a defining section. It is nothing more. It does not
nor was it ever intended to entrench into our way of life, the imperial system.
It defines a yard and a pound under section 1(1).
"........... 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 UK".
Sub section (3)
which was not included in the 1963 Act, that is, before our entry into the
European Union, was first included in weight and measure legislation in the
Weights and Measures Act 1976 four years after the accession of the United
Kingdom and to which I have previously referred. In the 1985 consolidation Act
an exception is made to the pint. The Schedule 1 referred to in section 1(3)
includes pounds.
A similar provision
of creating Henry VIII powers is to be found under Section 8(6). The Secretary
of State may by order:
(a) amend
Schedule 3 to this Act by adding to or removing from it any linear, square,
cubic or capacity measure, or any weight.
(b) add to vary
or remove from subsection (2) above any restriction on the cares or
circumstances in which, or the conditions subject to which a unit of
measurement, measure or weight may be used for trade or possessed for use for
trade.
Schedule 3 refers
to weights and measures lawful for use for trade; in Part V is the imperial
system. Therefore under both the European Communities Act 1972 and Weights and
Measures Act 1985 there is the vires for the Secretary of State to act in
accordance with Council Directives from the European Union. The relevant
statutory instruments empowered the Secretary of State for Trade and Industry,
say the prosecution, to implement those using Statutory
Instruments.
It is argued that
because of the wealth of work with which Parliament is now inundated, to make
every change to or amendment in the law, however trivial, subject to primary
legislation would swiftly bring the legislative process to a grinding halt.
Both sides accept that the Secretary of State has these powers, referred to as
Henry VIII powers. This I would say is not out of monarchical respect for that
King of England but as a term of contempt and derision because of his own
particular abuse of power. The exercise of these powers produce secondary
legislation. The defence argue that the powers so exercised by the Minister
should relate to min mundane and trivial matters - for the more important
matters, the defence say, there should be proper debate in Parliament. The
defence go on to argue that as this secondary legislation is as a result of
powers derived from an Act that predates the Weights and Measures Act, that is
the 1972 Act, secondary legislation is ultra vires. In fairness to the defence
they do not argue that the statutory instruments failed to implement the
Council Directives in that they were procedurally or formally flawed - just
that they were ultra vires. As I have said the Minister may exercise the vires
under either the 1972 or the 1985 Act.
The Statutory
Instruments Act 1946 defines a Statutory Instrument under section 1. I
understand that such Henry VIII measures were abolished until the Second World
War but since then have gradually come back into usage. Is the Secretary of
State entitled to amend the Weights and Measures Act, as in fact he did, and
when he did so was he acting ultra vires? Sec 8(6)5 states, inter alia:
"An order under
any provision of this Act shall not be made unless a draft of the order has
been laid before and approved by a resolution of each House of
Parliament".
This has been
done. The Statutory Instruments have undergone the appropriate Parliamentary
control and scrutiny by a resolution of each House of Parliament.
In the case of R
-V- Secretary of State for Trade and Industry ex parte Unison (1 996 RLR 438)
the argument now raised by the defence was rejected. It was held that Section
2(2) of the European Communities Act 1972 gave very wide powers to the
Secretary of State both to amend domestic primary legislation and to implement
Council Directives by secondary legislation in all matters related to our
community obligations. Section 2(2) of the European Communities Act 1972 is
particularly widely drawn. In that case L.J Otten said "it follows that when
addressing other specific issues in the terms advanced by the applicants in my
judgement the Act of 1972, properly construed, does empower the Secretary of
State to amend section 188 of the Act of 1992 Trade Union and Labour Relations
(Consolidation) Act by secondary, as opposed to primary, legislation so as
to… "and went on to conclude…" the provisions of the Act of 1992
especially section 197(l)(a) themselves do not exclude amendments by secondary
legislation".
In this case from
1985 there have been a number of statutory instruments, whose existence wording
/ meaning is not in dispute, which is delegated legislation. Erskine May
'Parliamentary Practice' refers to this timesaving device by writing:
"consequently,
legislative power is often conferred upon the Executive by statute and various
agreements are made for Parliamentary scrutiny of its exercise".
The prosecution
have helpfully drawn my attention to a number of instances where Statutory
Instruments have amended later statutes. Those statutes amended include
Fisheries Act 1981, Road Traffic Act 1988 and the Sex Discrimination Act 1975
(applicable to Armed Forces); there are others.
If I accept the
defence argument then not only will Parliament grind to a sudden halt but a
plethora of legislation including that just recited and being used on a daily
basis will all be ultra vires, The ensuing chaos that would result would be
mind-boggling.
One of the most
important reasons to justify European Union is that of conformity and
uniformity, That is all the member states adapting and applying the same rules
and regulations in the pursuit of, not only fairness, but to make the Union
easy to operate with everybody in the same boat starting from the same
position. It would destroy the concept of the Union if member states could go
off on legislative frolics of their own. I appreciate there are exceptions but
when there is an exception it is clearly spelt out. The Fisheries Limits Act
1976 is a good illustration of Parliament departing from European Legislation
stating in the Act that the Act "shall have effect regardless of the European
Communities Act 1972". If the Weights and Measures Act 1985 was to fit into the
same bracket I would have expected some degree of clarity upon the issue. For
this country to repeal the 1972 Act would not only involve an enormous
amendment to our Constitution but would require certain detailed steps to be
taken, and procedures to be adopted which simply have not taken place. It
cannot be done by stealth or error.
In the 1985 Act the
Secretary of State is given far ranging powers of what measurements can be used
for trade. Parliament adopts the same device and mechanism to make legislative
changes by Statutory Instruments even where the effect is to modify primary
legislation.
Section 1 of the
1985 Act is to be read as a whole. Section 1(2) is expressly qualified to move
units in and out of the Schedule by the Secretary of State. Section 1(4)
protects some measurements - the pound is not so protected - section 8(l) deals
with what is used as a measurement for trade. Section 8(4) is an offence to
contravene section 8(l). Section 8(6) gives powers to amend Schedule 3. One has
to look at Sections 1 and 8 as a whole and they provide powers to amend
Schedules 1 and 3. Parliament specifically intended the Secretary of State to
use the Henry VIII powers, that is delegated legislation, to do what has been
done. That is, over a period of time, modify units of weight for trade (more
accurately the measurement of mass).
Statutory
Instrument 1070 which is Unit of Measurement Regulation 1980 sets out the main
set of Regulations before the Consolidation Act of 1985. Regulation 8 refers to
units no longer authorised by reference to Schedule 3 which includes some
imperial units. Schedule 4 sets out measurements of mass or weight and
definition of units which may not be used for trade.
There were other
Regulations after 1985 such as Statutory Instruments 1986 1082 which provide a
classic example of vires under the 1972 Act. Schedule 1 referring to an
International System of Units whereby the kilogram is the unit of mass.
Statutory Instruments 1995 No. 1084 Weights and Measures, the Unit of
Measurement Regulation 1995 globally makes provision of movement across from
imperial to metric. Regulation 3(l) which states under 3(l)(a):
"where an
existing provision authorises or requires a measurement to be made, or an
indication of quantity to be expressed in a relevant imperial unit...........
the provision shall, unless the contact otherwise requires....... be expressed
in the corresponding metric unit".
That is the use of
the pound or ounce for goods sold loose from bulk, the relevant date was
01.01.2000.
By looking at the
1985 Act then various Statutory Instruments using the vires conferred by
section 2(2) 1972 Act on the Secretary of State one sees that the consolidation
Act of 1985 fits into a pattern.
Under section 1 (1)
Parliament did not intend to entrench imperial measures as section 1 is a
defining section. It is not intended to make other provisions invalid. The
vires used are different under section 2(2) to the vires used to amend the 1985
Act. The Weights and Measures Act 1985 (Metrification) (Amendment) Order 1994
Statutory Instruments 1 2866 is made by the vires given to the Secretary of
State by the 1985 Act whilst the Units of Measurement Regulation 1994 section 1
1994 2867 is made under powers given to the Secretary of State for this purpose
by the 1972 Act.
Parliament intended
the Secretary of State to use the vires as they were used to make this type of
amendment. In accordance with the 1972 Act it is necessary for a Minister to be
designated as responsible for a particular type of change. The European
Committee (Designation) Order 1976 897 shows powers given by Her Majesty to the
Secretary of State in relation to units of measurements. For example in the
Unison case previously referred to the vires to amend the later statute were
under the section 2(2) provision of the 1972 Act.
The defence argue
that whilst Henry VIII clauses are permissible they can not be used to bring
about changes of great importance - here national importance - an imperial
system. That is the initial demotion to second place of part of our heritage
and culture and subsequently to the disappearance of the same. The defence
refer to such clauses as imposing "despotic powers with notorious clauses"
placing Ministers above Parliament. I refer to Hyde Park Residence -V-
Secretary of State for Environmental Transport at the Regional and another
exparte Spath Holme (CA) 2000 3 WLR 141 in which it was said:
"although it was
possible for one statute to confer power for another to be amended by means of
delegated legislation such a power was to be narrowly and strictly
construed".
The draftsman will
have had full knowledge of the 1972 Act and our membership did intend what the
Minister has done. Obviously no statute confers on any Minister limitless
discretion - he must comply with the spirit of the legislation and do what
Parliament intended. Later I shall refer to our accession to the Treaty and the
Treaty itself. At the end of the day Parliament had the official say as to how
wide these powers are to be used and the extent thereof. Even if the defence
are correct in their swingeing condemnation - the simple truth is that
Parliament permits such powers to exist and is aware of how and when these
powers are implemented by the designated Minister. In our context Parliament,
or those aggrieved by the Minister's various decisions, have not sought to
overturn the decision made by the subordinate legislation. Parliament has power
to do this and I am aware members of the public have the right to challenge the
same. I do not find that the exercise of those powers in this case has
overturned by secondary legislation primary legislation.
The Ministers have
simply implemented, at the relevant time, what Parliament always intended them
to implement. Whether the relevant time is a result of political expediency or
absolute compliance with a European Directive is immaterial.
I would comment
that many years have passed since one of the earliest Statutory Instruments
were brought into force and there has been no challenge that has been brought
to my attention. Statutory Instruments, which are delegated legislation, can
only apply to amendments to primary legislation as that primary legislation
authorises them under section 2(2)(4) 1972 Act and section 1(3) and 8(6) of
1985 Act. It is crystal clear to me that the type of amendment envisaged is
that as referred to in the various Statutory Instruments that have come into
effect. That is, the demoting of the imperial system for the measurement of
mass to rank behind the metric system and subsequently to disappear forever as
a lawful measurement. This is what Parliament intended however popular or
unpopular such a move may be. The vires of the delegated legislation is
unassailable.
I accept there are
restrictions upon the things you can do and you can not do. Section 80(l)(x)
Health and Safety Act 1974 is an example of this. The case of R -V- Secretary
of State for Social Services ex parte Britnell (1991 1 WLR) is an example of
the Secretary of States power to make transitional provisions by Regulations.
Historically it was
in 1932 when a committee on ministers' powers was formed that the expression
Henry VIII clause was conceived. It was in 1948 that the Statutory Instrument
Act was passed as a result of the committee's deliberations. The legislative
process has to adapt to the times in which we live. It may well be that between
1932-1946 when the committee sat it was not envisaged what would happen in 1972
or the volume of work with which Parliament would be inundated. They were more
gentle and relaxed times. The fact is delegated powers exist and are likely to
be used more and more as time goes by. I do not read this as a clash between
Parliament and the European Union. Parliament knows what the position is and
has power to alter the same. Indeed Parliament has created the situation.
I find the 1985
Act, consolidating as it does previous enactments gave direct authority to the
designated Minister to implement the Statutory Instruments he has implemented,
in accordance with the wishes of Parliament to comply with our Treaty
obligations. All these implementations until today have gone unchallenged. I
believe the first instance of the delegated power being used under the Act was
the Weighing Equipment (Non-Automatic Weighing Machines) Regulations 1988 -
some twelve years ago. The 1972 Act imposes in section 2(2) the power that is
again referred to in 1985 and which the Minister has acted upon so adopting a
legislative formula used in this country for many a year. There is an unbroken
chain of legislative authority. I am aware that many leading authorities, like
Professor Craig of Oxford, are concerned about what is perceived as a shift in
the balance of power between Parliament and the Executive and find the concept
of delegated legislation as referred to Henry VlII powers as objectionable.
However they exist and no Parliament for over half a century have sought to
take them away.
It may be
convenient here for me to consider what were this country's obligations
vis-a-vis weights and measures following our accession to the Treaty of Rome.
If there were none, that may lend support to the defence
argument.
Under the Treaty
of Accession concerning United Kingdom (and other Sovereign States) accession
to the European Economic Community and of course the European Atomic Energy
Community occurred on 1.1.1973 and was signed by the Prime Minister of the day
the Right Honourable Edward Heath and others. We agreed to comply with the
articles of that Treaty. Article 2 in Part 1 states the rules of joining. I
quote:
"From the date of
accession the provisions of the original Treaties and the Acts adopted by the
institutions, of the communities shall be binding on the new member states and
shall apply in those states, under the conditions laid down in those Treaties
and in the Act".
Article 6 states:
"The provisions
of this Act may not, unless otherwise provided herein, be suspended, amended or
repealed other than by means of the procedure laid down in the original
treaties enabling those Treaties to be revised".
And thus we became
a member of this European Union.
Article 29 lists
the Acts to be adopted, in Annex 1. These include Council Directive
71/354/E.E.C of 18.10.71 which is the metrification directive. Article 1(3)
1(4) lists the units of measurement affected which include the imperial system.
Reference is made to article 1(3):
"is replaced by
the following:
"4. The
classification in Annex I of the units of measurement listed in Annex 11 shall
be decided on the 31st of August 1976 as the units of measurement concerning
which no decision has been 31st August 1976 at the latest, shall disappear on
the 31st of December at the latest. An appropriate extension of this time limit
may be for certain of these units of measurement if it should be for special
reasons".
And so the die was
cast. It may well be that prior to the referendum the attention of the British
public was not drawn to this. That is immaterial, there is no opt out clause if
not in the Treaty of Accession. We have to comply with and respect that at the
time of accession weights and measures became part of the field covered by
European Convention Law. From the moment the Right Honourable Edward Heath
signed the treaty on behalf of the UK he also agreed to the eventual demise of
the imperial system. Until this case I am not aware of anybody seeking to
challenge Parliaments intention in that respect.
As I understand the
position at that time voting upon European Union Law, the vote had to be
unanimous (Article 100). The first directive 76/770 after the accession was
accepted because the British delegate did not vote against the same. Even when
a variation took place to prevent one state holding up legislation and a
qualified majority vote was required, Council Directive 89/617 was passed. The
voting of the British delegate is unknown but we are bound by it. In that
directive 76/790 Article 1(3) states: -
"Member states
shall with effect from 31st of December 1979 at the latest, cease to authorise
the use of the units of measurement listed in Chapter C of the annex".
No. 9 under chapter
C we see the two simple words "Imperial Units". Let me recall that the Weights
and Measures Act 1976 which I believe received the Royal Assent on the 22nd of
November 1976, incorporated in section 1(3) (to which I have referred) and gave
to the Secretary of State power to amend Schedule 1 by adding to or removing
units of measurements of mass. The nexus is clear for all to see.
The European
Economic Area Act 1973 amended the European Communities Act 1972 Sec 1(2). This
sort of legislation cannot be passed if the 1972 Act is not up and running. It
shows this country's continued intention to be close to and involved in
European matters. Section 3 of this Act could not work if Section 2(2) of 1972
Act was not in force. This evinces Parliament's intention to keep the 1972 Act
live and in force.
I therefore reject
the defence argument that the various Ministers have acted ultra vires in
relation to the implementation of their Henry VIII powers by way of the various
statutory instruments. I therefore do not accept that Parliament never intended
the designated Minister to act in the way he has acted or that such Ministers
have usurped their powers. The Weights and Measures Act 1985 (Metrication)
(Amendment) Order 1994 is the authority that makes it unlawful to use the pound
for trade as from 1 January 2000 is valid in domestic law.
The defence seek to
rely upon the doctrine of implied repeal. Parliament has the power to repeal
the 1972 Act in exactly the same way as it had power to pass the Act. Section
2(4) the 1972 Act says the Honourable Sir John Laws:
"Falls to be
treated as establishing a rule of construction for later statutes, so that any
such statute has to be read (whatever its words) as compatible with rights
accorded by European Law".
This is obviously
contrary to the view that Parliament cannot bind its successors. In 1998 the
Human Rights Act was passed. It is accepted that from its passing any
legislation that is passed which may, intentionally or unintentionally, be
inconsistent with the European Convention of Human Right, there is power for
this inconsistency, this conflict, to be overridden by the courts with a
Remedial Order following a declaration of incompatibility. This is so even
though the subsequent pieces of legislation sought to override an earlier Act
of Parliament. The pre-1972 doctrine of implied repeal is not
applicable.
The Diceyan view of
the illimitable sovereignty offers a view expressed before the concept of a
European Union and the passing of the Human Rights Act. He writes:
"Any Act of
Parliament, or any part of an Act of Parliament, which make a new law, or
repeals or modifies an existing law will be obeyed by the courts - there is no
body of persons who can, under the English Constitution, make rules which
override or derogate from an Act of Parliament or which will be enforced by the
courts in contravention of an Act of Parliament."
In like vein
Blackstone writes of "The omnipotence of Parliament" and Sir Edward Cohen:
"The power and
jurisdiction of Parliament is so transcendent and absolute that it can not be
confined".
However these are
the writings of constitutional commentators of yesteryear. Time has moved
inexorable onwards. Every law student of my generation lapped up these sayings
with alacrity and gusto. It is true we believed they would stand the test of
time, now they are only of interest from the historical perspective.
The defence argue
that in relation to our constitution the older the doctrine the better. The
concept of the older the better may well apply to certain vintages of claret
but old law, like old wine eventually goes off. What happened in 17th, 18th and
19th century does not necessarily tie Parliament and the courts today if they
have evinced the intention of not being so tied because there would be an
apparent and obvious conflict with recent legislation and case law.
In 1972 Parliament
took a step which probably no British Parliament before it has taken. In the
1972 Act 2(4) reference is made to "enactments passed or to be passed." It did
the same, in principle with the passing of the Human Rights Act 1998. So what
was good law for the unfortunate Mr. Warner in 161 1, John Davison in 1783,
Elizabeth Warburton in 1831, J.W Hardie in 1853, Cannon Selwyn in 1872 and so
on does not mean it is good law today if Parliament has shown a contrary
intention - which it has. Those ladies and gentlemen of yesteryear are now
simply part of the case law of the land - a historical and non-binding part.
Constitutional law
is not like a stagnant pond - never changing. It is like a fresh running
stream, constantly changing as it does to accommodate the surrounding land and
the varying weather patterns, so it is with our Constitution in order to meet
the needs of the time and age in which we live. Constitutional law has and
always will evolve as of necessity to fit into the demands of the
time.
This country quite
voluntarily surrendered the once seemingly immortal concept of the sovereignty
of parliament and legislative freedom by membership of the European Union. In
doing so this must mean we have a hierarchy of statute the hierarchy dominated
by the 1972 and 1998 Acts.
The old adage where
that were there are two laws that are incompatible, the later repeals the
earlier to the extent of the incompatibility is no longer so. As Neil McCormick
writes:
"if the change to
the rule of recognition has been validly enacted in the sense suggested, the
lex posterior principle must be considered over ridden in relation to community
law"
In short Dicey's
"sovereignty is the power of law made unrestricted by any legal limit" and
Wades' "the rule was that an Act of Parliament in proper form had absolutely
overriding effect, except that it could not fetter the corresponding power of
future Parliaments" may no longer be an accurate expression of our present
constitution. Except, of course, to the extent Parliament may repeal both the
1972 and the 1998 Acts but for nearly one score years and ten she has made no
attempt to do so.
The 1972 Act was a
bold pronouncement that a new source of law is henceforward to be recognised in
this country.
So long as this
country remains a member of the European Union then the laws of this country
are subject to the doctrine of the primacy of community law. This doctrine of
primacy applies to all member states. The doctrine of primacy is as developed
by the courts of justice. This may well, according to some people, bring into
open conflict of the community law primacy and Parliamentary
sovereignty.
In the case of
McCarthy Ltd -V- Smith (1979 3ALLER325) Lord Denning said - (and this we must
remember was when community law in this country was in its
infancy):
"In constructing
our statutes, we are entitled to look to the treaty as an aid to its
construction: even more, not only as an aid but as an over-riding force. If on
close investigation it should appear that our legislation is deficient - or is
inconsistent with community law - by some oversight of our drafting - it is our
bounden duty b give priority to Community Law such in the result of section
2(2) and (4) European Communities Act 1972."
Such judgement
would seem to conflict in relation to what he said in the Felixstone case
(Felixstone Dock and Railway Company and European Ferries Ltd -V- British
Transport Dock Board 1976 C.M.L.R. 655) three years earlier but in that case
his comments were obiter and in view of recent European case law and rulings in
the House of Lords that case can not represent the correct position.
The defence argue
that Parliament can not pass an Act of Parliament which is entrenched so as to
prevent repeal by a subsequent Act of Parliament. No doubt the doctrine of
"implied repeal", if still valid, may apply to conflicting domestic legislation
simpliciter but not where that domestic legislation is in direct conflict with
the 1972 or the 1998 Acts. These two statutes are over ridding. This is
Parliaments intention. I can not accept that the 1985 Act repeals in some form
or another the 1972 Act. There is no conflict between the respective pieces of
legislation. It is wrong to argue that section I is anything more than a
defining section, it is not a statement that such measurement of mass over
rules the 1972 Act. The 1985 Act, in accordance with the 1972 Act, refers to
delegated powers and those powers are subsequently implemented by various
Statutory Instruments. It is a legal journey one step to another. The argument
that Parliament intended somehow or another to amend or repeal the 1972 Act by
a consolidation Act of Parliament is unacceptable and impossible. Parliament
can of course repeal the 1972 and the 1998 Acts. However to do so she must make
her intentions clear and go through the correct procedure.
I have been
referred to the case of Factortame referred to by some commentators as a legal
soap opera. In relation to that case the defence took me back to 1661 and the
case of Warner where is it reported: "a hundred precedent sub silentio are not
material".
The defence argue
that relevant and important arguments were not put before the House of Lords
(although it would seem there were four visits to the House when this could
have been done), that is the implied repeal argument was not raised. I cannot
accept the defence argument that if such argument had been raised the decision
could have gone the other way. Community Law says otherwise.
The implied repeal
point is a fundamental misconception and misunderstanding of Weights and
Measures Act 1985. The ordinary canons of interpretation apply. In volume 7
table 6 there is reference to "Linguistic Canons of Construction" in
particular:
"an Act is to be
read as a whole and general (e.g. section l Weights and Measures Act 1985)
provisions do not over ride special provisions" (Generalia specialibus non
derogant).
Also:
"Where the
literal meaning of a general enactment covers a situation for which specific
provision is made by some other enactment within the Act or instrument, it is
presumed that the situation was intended to be dealt with by the specific
provision." (Generalitus specialia derogant)
It is presumed that
the general words are intended to give way to the particular. This is because
the more detailed a provision is, the more likely it is to have been tailored
to fit the precise circumstance of a case falling within it. I refer to Effort
Shipping Co. Ltd -V- Linden Management S.A and another. The Giancis UK (1 ALL
E.R. 1998 495).
The defence
argument here is that there was a repeated failure to apply the basic
construction principle of implied repeal. They say that the House of Lords,
which is the highest court in the land, and whose decisions bind me, "fell into
such egregious error". It is not my position to criticise, condemn or ignore
their Lordships ruling - like Mary's little lamb I simply have to follow. I am
bound by the ruling. The defence may condemn their Lordships ruling; I cannot.
In this case there was concern about the compatibility or otherwise of
provisions contained in Part 11 of the Merchant Shipping Act 1988 with
Community Law. The House held that the High Court was competent to give relief,
whether by interim injunction or final declaration, whose effect would be to
disapply main U.K legislation as being incompatible with the law of the
European Union. Lord Bridge said:
"By virtue of
section 2(4) of the Act of 1972 Part 11 of the Act of 1988 is to be constructed
and take effect subject to directly enforceable community rights. This has
precisely the same effect as if a section were incorporated in Part 11 of the
Act of 1988 which in terms enacted that the provision with respect to
registration of British fishing vessels were to be without prejudice to the
directly enforceable community rights of nationals of any member state of
EEC".
Section 2(4) has
the effect of establishing a rule of construction for statutes passed after
that date - that is those statutes have to be read as compatible with the
rights according to European Law. I appreciate that there are those legal
commentators, including the defence, who believe that Lord Bridge connived at
over turning what was, so I am told, till then a fundamental constitutional
rule that Parliament can not bind a successor Parliament as enunciated by
Dicey. Whether the criticism of Lord Bridge is justified or not is not material
it matters not a jot because I am bound by his judgement. Parliament is aware
of the judgement and has not sought to reverse the same by amending or
repealing the 1972 Act and I doubt if it will do so in the foreseeable future,
if ever. The important point is that if she wishes to do so she may. As the
House of Lords visited this case on no fewer than four separate occasions I
find it difficult to accept that they and the various parties appearing before
them constantly over looked the doctrine of implied repeal if it was of such
fundamental importance.
In R -V- the
Secretary of State for Employment ex-parte Equal Opportunities Commission (1995
l.ACl) the judgement in the Factortame was supported when Lord Keith of Kinkel
said:
"The Factortame
case is thus a precedent in favour of the Equal Opportunities Commission
recourse to judicial review for the purpose of challenging as incompatible with
European Community Law the relevant provisions of the Act of 1978".
Community Law is
supreme and the British Courts accept that, as indeed does Parliament.
The case of
Vauxhall Estate Ltd -V- Liverpool Corporation (1 931 - 1 KB 733) and Ellen
Street Estate Ltd -V- Minister of Health (1 934 1 KB 590(CA)) as listed in
detail by the defence are cases which did not examine in depth Parliamentary
sovereignty and were in any event cases prior to the 1972 Act which created a
new legal order and also prior to the House of Lords ruling in Factortame. This
country is not seeking to move away from Europe by implied repeal of all or any
part of the European Communities Act 1972.
This country has
shown the opposite intention. Since entering Europe we have incorporated into
domestic law the Single Europe Act, the Treaty of European Union, the Treaty of
Amsterdam and the Treaty of Maastricht. These Acts and Treaties are
illuminating statements that Parliament wishes this country to be an integral
part of the European Union - in short the closer the better.
The defence have
also sought to rely upon International Law, especially that in relation to
treaties. The defence argue that it is a basic proposition of international law
as confirmed by the Charter of the United Nations Declaration on Principle of
International Law of 1970 that there is a duty not to intervene in matters
within the domestic jurisdiction of any state, and further, under Article 1 of
the International Convenant on Civil and Political Rights that nations and
people enjoy a right to self - determination, This is no doubt true but where
is the relevance here? If a state wishes on a voluntary basis to have its
domestic jurisdiction subject to and part of European Law, then providing the
process adapted is a legitimate one (in this country that would be an Act of
Parliament with a Royal Assent, passed by a democratically elected Parliament)
then who can or is to stop it?
This country held a
referendum - it may be that all the issues were not put to the British
electorate - and voted to join the then E.E.C. To deny what the majority of the
electorate wishes would bring about the very state about which the defence show
concern, that is not allowing the majority self - determination as they wish.
The same way as we joined Europe by passing an Act of Parliament with Royal
Assent then we may leave by the same means. Our membership is not
entrenched.
The passing of the
ECA 1972 meant that European legislation became part of our legislation. This
country has not been forced or coerced (although some may say the electorate
were misled) to join the European Union; we did so voluntarily. Since 1972
Governments of different political persuasions have not sought to bring about
our withdrawal.
The case of
Blackburn -V- Attorney General (1971 1WLR 1037) supports this proposition where
it was held that the courts could not impugn the treaty making power of the
Crown and would only interpret laws when they had been made by Parliament.
The defence argue
that the right of self-determination is inalienable. This is correct. However,
if a country wishes to be a member of a collection of European states and have
the support of the populace, as revealed by a referendum, then the defence can
not argue that the right to determination has been "bartered away by a
Government Minister in a mere treaty".
What cannot happen
is for a state, against its wishes, to be subjugated to the laws of another
state by oppression, coercion or force. It is to prevent that state of affairs
that so many of these International Treaties and Conventions have been brought
about, especially following the dark days in Europe between 1914-1918 and
1939-1945. Freedom of choice is the over-riding doctrine and we in this country
have made our choice.
This country has
decided that its political future lies in Europe - not the whole of Europe -
but with those states that make-up the European Union. As such it has joined
this European club and by so doing has agreed to be bound by the rules and
regulations of the club, as indeed have all the other member states.
By joining we and
all the other member states have not breached Article 53 of the Vienna
Convention or the Law of Treaties. No Conventions or Treaties would ever seek
to remove from an independent state its freedom of choice as to how it wished
to be governed. If this country wished to be part of an international
(European) Organisation, which is what the European Union is, then it may do
so.
My attention is
drawn to U.N. Resolution 1541 (XV) which contemplates 3 possibilities as part
of the right of self-determination in relation to non-self governing
territories which include free association with an independent state and
integration with an independent state.
It may be that the
Factortame judgement has been rejected by the Supreme Court of Denmark because
they believe it violates the Jus Cogens right of that country to
self-determination. I do not have to follow the decision in a Danish Court,
especially when it conflicts with a decision of the House of Lords on the same
point. I have to follow that Court and the law.
Parliament is not
necessarily bound by International Treaties. The case of the Parlement Beige
(1879 4PD 129) confirms this although in that Judgement it
states:
"The power of the
Crown to make treaties with foreign states is indisputable".
Again this
principle is reiterated in the case of Mortense -v- Peters (1906 14SLT 227). In
Soloman -v- Commission of Customs and Excise (2 QBD 1966 116) it was held the
Sovereignty of Parliament extends to breaking treaties. In that case Ellerman
Line Ltd -v- Murray, White Star Line of Royal and United States Mail Steamers,
Oceanic Steam Navigators Co Ltd (1 932 AC 126) is cited.
However Parliament
has not sought to break the Treaty of Rome which cannot be compared to the
Treaties in the cases cited by the defence some of which I have referred to
above. They are Treaties covering relevantly minor matters, when compared to
the Treaty of Rome and the subsequent Community Law and Directives which are to
affect the everyday lives of the citizens of this country. Nothing referred to
in the Treaties in the various cases quoted can be compared to E.C.A. 1972
which in many respects, prior to the Human Rights Act 1998 is a one-off piece
of legislation which Parliament has not only decided not to revoke but to
enforce with various later Treaties some of which I have alluded
to.
All the cases
cited in relation to foreign treaties come from a by-gone age and are not
really relevant as far as the point I have to decide today. By being part of
the European Union it is wrong to say that we are subject to their laws as if
they were the laws of a foreign power. We have voluntarily incorporated them so
that they now become our laws.
When this country
joined the E U we took on board all existing jurisprudence and took on law that
is fundamentally different form the International Treaties referred to in the
cases cited by the defence and relate to ordinary International Treaties. Many
such Treaties exist today and are mainly to do with commerce. But European Law
is supreme. In the European Union the treaties are fundamentally different as
they relate to what is almost a new way of life and not limited like most
International Treaties referred to, that is, commercial considerations.
The exercise of
powers under the 1985 Act are entirely in existence with the obligation under
European Communities Act to enable the Secretary of State to use vires to
effect necessary change as they become necessary to comply with our accession
to the Treaty of Rome and our membership of the European Union.
There is no
conflict between the 1985 Act and obligations under European Community
directions. It envisaged a considerable period over which it took place. It was
never intended that the Weights and Measure Act 1985 (a consolidation Act) was
to reverse the relentless march of metrication.
Although when the
committee met from 1932 there was some recommendation for the abandonment of
such clauses such recommendations were not followed. It is seen that Parliament
has quite openly granted great powers to her Ministers who are in any event
answerable to Parliament.
Wade in his book on
Administrative Law shows that Henry VIII powers are alive and well and used by
Parliament:
"The European
Communities Act 1972 which give powers to make orders in council and regulation
for giving effect to Community Law which are to prevail over all Acts of
Parliament, whether past or future".
The defence attack
the vires contained in 1972 and 1985 Acts are not sustainable. The methods of
amendment are lawful and proper and often confirmed by decisions of the
Divisional and other Higher Courts.
Section 2(2) of the
European Communities Act 1972 is a mechanism to be found to enable obligations
to be given effect in National Law. The Minister has to have regard to
Community objectives for which he has wide-ranging powers. The designate
Minister has to see what vires are at his disposal. If they are available under
the principal domestic Act there is no need to use the European Communities Act
1972. If vires in the principal Act do not go far enough to make changes to
comply with European Community law then he may use the vires under the European
Communities Act.
In the case of R
-v- Secretary of State for Trade and Industry ex parte Orange Personal
Communications (Q.B.D. 20.10.2000) there is revealed the freedom of the
Minister. Mr Justice Sullivan said:
"Subordinate
legislation is in quite a different category from primary legislation; it
represents the will of the executive- it can be made only within limits
expressed or implied in the enabling Act and the court has jurisdiction to
determine that this has not been done in which event it is void".
Later he says:
"Moreover
Parliament has delegated power to modify primary legislation, the subordinate
legislation should be construed restrictively..."
And again later:
"If a statutory
provision is ambiguous there is a presumption that Parliament intended it to be
construed in accordance with our international treaty obligations..."
And finally:
"Since the
directives formed part of the U.K. Community obligations Parliament may be
taken to have known that the result had to be achieved, the Executive retain a
broad discretion to repeal or amend primary legislation by way of regulations".
The High Court has
said you can use the vires in the 1972 Act to amend primary legislation. In
fact the principle of using vires under the 1972 Act to amend Acts of
Parliament is not in dispute.
In the Weights and
Measures Act 1985 Parliament was told expressly by the words of Statutory
Instruments what, how and when the changes were. Again Parliament was aware
that the Metrication Directive had to be achieved.
To remove the pound
the Secretary of State could use either the vires under the 1972 Act or 1985
Act. He can decide - what he cannot decide is his obligation to implement
Community Law and Directives. The power in 1 (3) is to remove items from the
Schedule. It is a specific power not a general one. I have already referred to
the English canons of interpretation, which show that the Secretary of State
did exactly what he was required to do.
In 1985 Parliament
did not withdraw Weights and Measures from- the primacy of Community Law. A
look at Community Law shows that in the Van Gend en Loos case (case 26/62 1963
ECR 1):
"The object of
the E. E.C treaty which is to establish a Common Market the functioning of
which is of direct concern to interested parties in the Community, implies that
this Treaty is more than an agreement merely creating mutual obligations
between the contracting states".
And later:
"The conclusion
to be drawn from this is that the Community constitutes a new legal order of
international law for the benefit of which the States have limited their
sovereign rights, albeit within limited fields, and the subjects of which
comprise not only Member States but also their nationals".
I would add as a
rider it would be difficult to have a common market with two ways of measuring
mass. This is an early authority that shows the relationship between National
Law and EC Law where the whole status of EC Law is brought into question. It
will be seen it is not another ordinary international treaty like those
treaties referred to in cases put forward for the defence. It is a treaty that
is much more far-reaching.
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. This is the current position and will always be
until parliament legislates otherwise.
As I have said the
signing of that Treaty was the first step to the abolition of the Imperial
System. It was the beginning of Parliaments avowed intention to say "fare thee
well" to the Imperial System and embrace the Metric System.
This is confirmed
in Flaminio Costa -V- ENEL (1 963 6/64 ECR 1) when the court ruled:
"
By contrast with
ordinary International Treaties the E.E.C Treaty has created its own legal
system which on the entry into force of the Treaty became an integral part of
the legal systems of the Member States and which their courts are bound to
apply".
Both these cases
drive a coach and horses through the argument put forward by the defence of the
Sovereignty of Parliament. To further drive home this point the court at
Luxembourg which normally gives judgments but can give opinions did so in
opinion 1/91. 1 quote part of Paragraph 21:
"The E.E.C Treaty
- none the less constitutes the constitutional Charter of a Community based on
the rule of law - the Community treaties established a new legal order for the
benefit of which the states have limited their sovereign rights, in even wider
fields, and the subjects of which comprise not only member states but also
their nationals".
These judgements
and this opinion which are spread over a quarter of a century or more reveal
that EEC law takes precedence and that member states have surrendered their
sovereign rights.
The European
courts, whose judgments are binding upon us, have been ever-consistent in their
approach. In the case of Simmenthal (case 106/77 1978 ECR 629) where a conflict
arose between Community and National law the court ruled:
"It
follows...that every national court must in a case within its jurisdiction
apply community law in its entirety and protect rights which the latter confer
on individuals and must accordingly set aside any provision of national law
which may conflict with it whether prior or subsequent to Community rule."
As a once Sovereign
power we have said we want to be bound by Community Law. We said this
voluntarily and so we voted. There is no conflict between the principle of
self-determination and the European Communities Directives on metrication. We
cannot leave by stealth by passing Acts that conflict with Community law as
seems to be suggested. If we wish to leave we must manifest our plainest
intention. We have never done so. There are numerous authorities
including:
- 1995 1 . Law and Democracy.
The Honourable Sir J Laws.
- 1999 2. Questioning
Sovereignty (Law State and National in the European Commonwealth) Neil Mc
Cormick.
- 1999 3. Studies in
Constitutional Law. Professor Colin Munro.
- 1994 4. The Changing
Constitution. Jewell and Olive
- 1999 5. Sovereignty of the
U.K Parliament after Factortame. P.P Craig.
All these
authorities are up to date by constitutional experts and reveal not only a
major shift in the constitutional landscape but a shift with Parliament's
knowledge, approval and consent. Implied repeal does not work in the context of
European law because of the doctrine of primacy and supremacy. Implied repeal
formed part of a set of principles derived from the doctrine of Parliaments
sovereignty - a doctrine now defunct when in conflict with the 1972 Act. In any
event it is not applicable when a consolidation Act, which is what the 1985 Act
is, is involved.
I am aware that
this case has aroused saracenic emotion from what I have read in the Media and
what has even been written to this court. My sole task is to apply the law to
the facts and see if an offence has been committed. I am not to be swayed by
public opinion or to take any form of political stance. I am not and do not.
In this case the
Prosecution, that is the Local Authority, have come in for some heavy
criticism, to many they are the villains of the peace. I even saw a mis-guided
letter in The Times saying this prosecution should not have been brought. This
was by a lawyer.
Let me comment upon
the Prosecution and in doing so I will say that the defence, and this is to
their great credit, pass no personal criticism about this prosecution being
brought. They say the prosecution is wrong in law but that is not a personal
criticism. If Parliament enacts legislation then that legislation has to be
enforced. Most legislation involving criminal offences is enforced by the
C.P.S. However there are other statutory bodies like the Health and Safety and
of course, the Local Authority who are also prosecuting authorities. It is not
for these bodies to decide whether or not they will enforce Parliamentary
legislation. They must do so but clearly have a discretion. They are not able
to exercise that discretion to favour certain members of the public. The law
must apply to all.
In this case the
handling by the Local Authority has been of the highest order. So many years
ago Local Authorities who saw what they believed to be an offence being
committed would prosecute without consultation or debate. Nowadays Local
Authorities try to work with the communities they serve. They talk to them,
they reason with them, they try to point out the law. In this case they spoke
to Mr. Thoburn on several occasions. Many have adapted a Code of Practice and
Conduct. In short their conduct has been exemplary.
As I emphasise the
defence do not criticise them, their only comment is why the prosecution should
relate to foreign produce purchased on July 4th, the American Day of
Independence. This I understand.
For the reasons
stated I find these matters proved.
April 9th
2001