1.
Introduction
1. By instructions
in writing received from Messrs Bennetts, solicitors, of Harlow in the County
of Essex, on 8th December 1999, I am asked to advise the United Kingdom
Independence Party on the validity of the Weights and Measures (Units of
Measurement) Regulations 1994 and the Weights and Measures Act 1985
(Metrication) (Amendment) Order 1994. These regulations purport to introduce
compulsory metrication in the United Kingdom.
2. There is no
reason at all why a political party should not seek the advice of counsel. As
is well-known the United Kingdom Independence Party ('UKIP'), as its name
implies, pursues a policy of the withdrawal of the United Kingdom of Great
Britain and Northern Ireland from the European Community. It is a perfectly
proper policy and I wish to say nothing against it, indeed it will be recalled
that it was for many years the policy of the governing party. It will also be
recalled that aside from sending an observer the Conservative Government of the
day resolved to have nothing to with the negotiations which led to the Treaty
of Rome. I might add that it would seem from recent opinion poll evidence that
the policy has the support of the country. There it is.
3. I have of course
disclosed to those instructing me that I am a member of a different party. In
accordance with the tradition of the Bar the advice I give is free of party
political considerations. I should give the same advice to my own party (the
Conservative and Unionist Party) or to any other political party. I suppose
that in the course of my career at the Bar I have prosecuted as many cases as I
have defended (I have never felt it necessary to keep a count), including
trading standards pr6secutions. If I were called upon to advise a local
authority I should give exactly the same advice about the vires of these
purported regulations. I should also disclose that I am a member of the British
Weights and Measures Association. No conflict of interest arises.
2.
Metrication
4. I have read with
interest the correspondence passing between Mr. Jeffrey Titford MEP and various
trading standards departments in the East of England. The Metric Celsius system
of measurement was of course introduced by the French Revolutionary government
from 1790, the basic linear unit, the metre, being based on a miscalculation of
the surface distance between the North Pole and the Equator through Paris (why
anyone would ever want to travel from the North Pole to the Equator via Paris
was never made clear). Some Imperial measures continue in use on the Continent
down to the present day, a point acknowledged by the Minister in his letter to
Mr Titford dated 1st October 1999, a copy of which is enclosed with my
instructions.
5. It is sometimes
asserted that the metric system has been generally adopted, but that is not
right. The world's largest economy (and our largest trading partner), the
United States, continues to use English measurements, a point I was able to
confirm on a recent visit to celebrate the Thanksgiving holiday -every signpost
was in miles and every petrol pump calibrated in gallons (albeit American
gallons!). I understand that a number of states have abandoned moves to convert
to metric, a trend likely to be accelerated by the loss of the Mars Climate
Orbiter after the Jet Propulsion Laboratory in Pasadena wrongly assumed engine
thrust to have been expressed in Newtons as opposed to pounds thrust. I am told
that Canada (where the use of metric measurements caused an airliner to crash)
is pulling back from compulsory metrication. Imperial measures remain in
near-universal use in aviation (save for Russia, where the calibration of
aircraft instruments in metric contributed to a mid-air collision) and at sea
(e.g. nautical miles).
6. Metric
measurements were made lawful for use in the United Kingdom in 1897, but proved
to be of limited utility and the metric system did not gain widespread
acceptance. No doubt with a further application to join the European Community
in mind the government in 1965 announced a new policy of compulsory
metrication. It did not enjoy democratic legitimacy (people and businesses were
perfectly at liberty to use metric if they wished, but they declined to do so)
and proceeded slowly. Eventually Council Directive 80/181/EEC, as amended by
Council Directive 89/617/EEC, provided for compulsory metrication across the
European Community and it was in response to these directives that the 1994
Regulations were brought in, their purpose being essentially to outlaw the
imperial system and criminalise its use, subject to limited exceptions such as
the pint of beer and the pint of milk (but only if sold in bottles). If valid
the combined effect of the Regulations would make it a criminal offence in
England, from 1st January 2000, for a grocer to sell a pound of apples.
3. The Weights
and Measures Act 1985
7. This was a
consolidation Act, which has a bearing on its interpretation, as a
consolidation statute is presumed not to alter the law unless the contrary
intention appears (Bennion, Statutory Interpretation, 2nd ed., at 442). By
section 1 a dual system of weights and measures is expressly provided for and
the yard and the pound are defined (curiously by reference to their metric
'equivalents,' although there are no metric equivalents and the new yard is
slightly longer than the old.) Schedule 1 expressly refers to Imperial
measurements including the mile, yard, foot and inch (in Part 1), the acre,
square yard and square foot in Part II, the gallon (ludicrously defined as
"4.54609 cubic decimetres"), quart and pint in Part IV and the pound and ounce
in Part V.
8. Schedule 3 is
headed "Measures and weights Lawful for Use for Trade" and again expressly
refers to Imperial linear, square, and capacity measures and Imperial weights.
It is clear beyond a peradventure of a doubt that the use of Imperial weights
and measures for all purposes has been expressly authorised by the Imperial
Parliament at Westminster. No amending Act has been introduced. Under the Law
of the Constitution no Act of Parliament may be amended save with the authority
of Parliament. I turn now to consider what Parliamentary authority there might
be for the 1994 secondary legislation.
4. The Units of
Measurement Regulations
9. These purport to
amend the Weights and Measures Act 1985 ('the 1985 Act') by Regulation 4(4),
adding a new Regulation 11 to the Units of Measurement Regulations (SI
1986/1082), whereby units of measurement specified in Schedule 3 to the
Regulations are deleted. These are all imperial measures. Regulation 6 purports
to amend the 1985 Act from 1st October 1995, inter alia by removing from Parts
1 and II of Schedule 1 to the 1985 Act all reference to imperial units
(Regulation 6(5)(a)). Regulation 7 purports to further amend the 1985 Act from
1st January 2000 by deleting reference to the fluid ounce, pound and ounce. It
is the operation of this regulation 7, which has led to the threats to traders
referred to in my instructions, albeit that the prosecuting authorities each
express the wish that traders will submit to metrication without the need to
trouble the courts.
10. The weights and
Measures Act 1985 (Metrication) (Amendment) Order also purports to amend the
Act, but only section 8(2) and Schedules 3 to 7. Critically, this order leaves
Section 8(1) and Schedule 1 untouched. Section 8(1), which is not purportedly
amended in either set of regulations, provides as follows: - No person shall
use for trade any unit of measurement which is not included in Parts 1 to V of
Schedule I to this Act, or... Section 8(2) goes on to deal with having in
possession for use for trade measures (e.g. scales) which are not included in
Schedule 3, which is purportedly amended by Article 3(3). There may therefore
be a different legal result depending upon the precise nature of the offence
alleged, although the conflict set up by this cumbersome regulatory scheme may
be impossible to resolve in favour of the prosecution (if one set of
regulations is invalid and other valid it would arguably be legal to sell a
pound of apples but illegal to own a set of Imperial scales).
11. The scheme of
the regulations is to leave Section 8(1) alone and simply delete Imperial
measurements from Schedule 1, which is of course referred to in Section
8(l)(a). The first thing to be said is that this must surely be the most
obscure method of amending an Act of Parliament ever devised. Had the Minister
intended to mislead Parliament or the public by disguising what he was seeking
to do he could not with respect have chosen a more effective method. I have
seen pleadings in Chancery which were a model of clarity in comparison.
12. When these
matters get to court it will be necessary for counsel to prepare a form of
Scott schedule, to be agreed if possible with prosecuting counsel, setting out
the original wording of the 1985 Act, the wording contended for by the
prosecution (i.e. as purportedly amended) and the effect of each set of
regulations being valid on their own (i.e. 8 split result).
5. The European
Communities Act 1972.
13. The possibility
of a split result arises because for reasons which only the Minister could
explain he used two different powers. The Units of Measurement Regulations were
introduced under the alleged power conferred on the Minister by section 2 of
the European Communities Act 1972. Notoriously this ludicrous piece of
legislative drafting purported to bind future parliaments by means of
sub-section (4), "...any enactment passed or to be passed ... shall be
construed and have effect subject to the foregoing provisions of this section."
That was a nonsense and a constitutional impossibility, because as is
well-known our sovereign parliament cannot bind its successors and in the event
of conflict the later Act takes precedence (subject only to the limited
generalia specialibus non derogant rule which does not apply here and where in
truth there is no conflict at all because the later general words are
reconciled with the earlier enactment). If authority were needed for the above
proposition it is be found in Dicey, The Law o~ the Constitution (10th ed.,
Part 1, Chapter 1, passim). The law is correctly stated, with particular
clarity, by this immortal jurist between pages 64 and 70, passages which I
humbly and respectfully adopt in their entirety.
6. lmplied
Repeal
14. Not only may
Parliament repeal any previous legislation expressly it may do so impliedly and
at will, through the simple expedient of enacting legislation which is
inconsistent with the earlier enactment. This is known as the Leges Posteriores
Priores Contrarias Abrogant Rule (see Bennion, op cit, at 204, citing inter
alia Sir Edward Coke, 1 Inst 25b). It is an ancient rule, as old as Parliament
itself, of immense constitutional significance, guaranteeing as it does the
liberties of parliament to legislate and by extension the liberties of the
British people. The Constitution admits of no higher authority than the
Sovereign in Parliament. The Leges Posteriores rule is absolute and admits of
no exceptions, not even Magna Carta or the Bill of Rights (indeed the Court of
Appeal has only recently rejected an attempt to protect the Bill of Rights
against the rule and rightly so, with respect, in ex p Burke, upholding the
judgment of Popplewell J.).
15. The power of
the Leges Posteriores Rule was recognised by the draftsman of the Human Rights
Act 1998. Although not in force (save for minor sections) this legislation was
designed to incorporate the controversial European Convention on Human Rights
into UK law. Some proponents of the ECHR, seemingly unaware of basic
constitutional principles, bizarrely proposed that subsequent Parliaments be
bound. Of course that was not possible and in the event that a later Act of
Parliament is found to have contravened a provision of the Convention the
courts are limited to a declaration that the later Act is inconsistent, leaving
it to Parliament to bring in amending legislation if it so pleases, it being a
matter entirely for Parliament. Of course Parliament would be free not to amend
the legislation, or for that matter to repeal the Human Rights Act, which like
the European Communities Act 1972 and the Bill of Rights is an ordinary Act of
Parliament subject to repeal both express and implied repeal in the normal way.
16. Section 2(4) of
the European Communities Act 1972 was not the only ineffectual attempt to
undermine the sovereignty of Parliament by seeking to tie the hands of future
Parliaments. His late Majesty King Henry VIII tried it, as recorded by Bacon,
cited by Dicey, op cit at 64-5n, seeking to provide that no statute made during
the minority of a King should be binding until confirmed by the King under His
Great Seal at full age. This was as futile as Section 2(4) and was duly
repealed early in the reign of our child king, Edward VI. No-one has ever
doubted the authority of the King in Parliament in the reign of King EdwardVI.
17. The next figure
in our island story to try to attack Parliament in this way was David
Lloyd-George, who was Prime Minister when the Acquisition of Land (Assessment
of Compensation) Act 1919 was passed, s.7(l) of which purported to bind future
Parliaments. Surprisingly, withrespect, counsel (Mr. Hill) was found who was
willing to assert that s.7(l) bound future parliaments. In due course a case
was stated by an official arbitrator appointed under the Act and the matter
came on for argument before the Full Divisional Court (Vauxhall Estates Ltd V
Liverpool Corporation [1932] 1 733). That most distinguished tribunal (with
respect), Mr Justice Avory, had no hesitation in rejecting Mr. Hills' startling
submission that a section of an Act passed in 1919 could somehow affect an act
passed in 1925. The learned judge ruled as follows (at 743): ... we are asked
to say that by a provision of this Act of 1919 the hands of parliament were
tied in such a way that it could not by any subsequent Act enact anything,
which was inconsistent with the provisions of the Act of 1919. It must be
admitted that such a suggestion as that is inconsistent with the principle of
the constitution of this country. Avory J. went on to point out (at 743-4) that
if the 1925 Act were inconsistent with the 1919 Act "the earlier Act is
impliedly repealed by the later.”
18. The Vauxhall
Estates case was heard by an exceptionally powerful Divisional Court. Sir
Horace Avory (1851-1935) was perhaps the greatest judge to sit in the King's
Bench Division in the century just ending and acted as Lord Chief Justice when
Lord Hewart CJ was ill. His judgment on this occasion was supported by no less
a legal personage than Sir Travers Humphreys, of whom the Biographical
Dictionary of the Common Law records (at 264) that as a criminal prosecutor "he
was so fair that he left nothing for the defence to say." His cases at Bar
included the prosecutions of Oscar Wilde, Dr. Crippen and the traitor Sir Roger
Casement. His judgment in Vauxhall Estates (at 745-6) is succinct, closely
reasoned and correct (with respect) …In this case the argument for the
claimant is that s.46 of the Housing Act, 1925, does not, and never can, apply
to this or any other case, inasmuch as it is utterly void and of no effect..
That is certainly an astonishing proposition, and Mr. Hill has based it upon
the language s.7,sub-s 1, which provides that : "the provisions of the Act or
order by which the land is authorised to be acquired ...shall...have effect
subject to this Act," and further that: "so far as inconsistent with this Act
those provisions shall cease to have or shall not have effect." (emphasis
added) He says that these words mean that at no subsequent time shall it be
competent for parliament to alter the law as there laid down, except in or
other of two ways. He admits very frankly that it would be open to Parliament
to repeal that sub-section by express enactment, and he admits that it would be
open to parliament at any subsequent time to amend that sub-section by implied
enactment. He says, however, that the ordinary rule of construction, which lays
down that where two inconsistent provisions are found in two Acts of
parliament, the one passed subsequently to the other, the later provision shall
prevail and shall be deemed impliedly to repeal the earlier provision,
(emphasis added) cannot apply to this sub-section because of its special terms.
For my part I fail to follow that argument. If it is once admitted that
Parliament, in spite of those words of the sub-section, has power by a later
Act expressly to repeal or expressly to amend the provisions of 'the
sub-section and to introduce provisions inconsistent with them, I am unable to
understand why parliament should not have power impliedly to repeal or
impliedly to amend these provisions by the mere enactment of provisions
completely inconsistent with them. I do not see how that exposition of the law
could be improved upon and I do not propose to attempt the task, contenting
myself with respectfully adopting that passage as a correct statement of the
law, with inevitable consequences for the Units of Measurement Regulations.
19. Mr. Hill did
not rest there. He thought it right (it was a matter for him) to ventilate his
argument two years later before the Court of Appeal. Another strong court
(Scrutton & Maugham LJJ and Talbot J) threw the argument out. The case is
reported as Ellen Street Estates Ltd V Minister of Health [1934] 1 KB 593. Lord
Justice Scrutton, having described Mr. Hill's argument (at 595) as
"impossible," went on to say Such a contention involves this proposition, that
no subsequent parliament by enacting a provision inconsistent with the Act of
1919 can give effect to the words it uses. This passage emphasises an important
aspect of the doctrine of implied repeal - it rests upon the express will of
parliament. Applying the weights and Measures Act 1985 requires no more than
giving effect to its clear and express words It is nothing to the point that
there are no express words of repeal or amendment of the European Communities
Act 1972 - as both the Divisional Court (whose decision was upheld in Ellen
Street Estates, at 596) and the Court of Appeal held words of repeal are not
necessary.
20. Neither
Scrutton U nor Maugham LJ decided the case on the basis that s.7(l) of the 1919
Act did not purport to bind future parliaments (although the junior member of
the court, Talbot J, whilst agreeing with his brother judges, was prepared to
adopt such a construction (at 598)). The judgment of Maugham U (later a Lord of
Appeal in Ordinary) contains an admirably concise statement of the
constitutional position, at 597: The Legislature cannot, according to our
constitution, bind itself as to the form of subsequent legislation, and it is
impossible for parliament to enact that in a subsequent statute dealing with
the same subject-matter there can be no implied repeal. (emphasis added).
21. So far as I am
aware the authority of these decisions has never been called into question in a
court of law in England, nor is there any constitutional basis for doubting
them. There was no revolution in 1972 - all that happened is that parliament
was persuaded (by doubtful means it must be said) to pass an Act of parliament.
The parliament of 1985 was no fewer sovereigns than the parliament of 1972 and
it could and what is more did over-ride the European Communities Act and
Council Directive 80/181/EEC at will. For the reasons explained by Lord
Maugham, Lord Justice Scrutton and Mr. Justice Humphreys the proposition that
anything done in 1972 could have a bearing on an Act of parliament passed more
than a decade later is unarguable and contrary to the Law of the Constitution.
I would not expect any Member of the Bar of England and Wales to put it
forward.
22. I have
highlighted these two cases because of the clarity of the judgments, the
outstanding quality of the judges who delivered them and because they are
precisely in point, given the attempt in 1919 to bind future parliaments (I
agree with the Court of Appeal that section 7 of the 1919 Act is capable of
bearing the construction urged by Mr. Hill for the claimants). It should not be
supposed however that these are the only authorities on implied repeal. I need
only refer to Maxwell on the Interpretation of Statutes (at 191 et seq.), to
Bennion (op cit)(at 204-5), who does not like the doctrine (or perhaps, with
respect, does not like its consequences) but who admits of its existence, to
Odgers Construction of Deeds and Statutes (5th ed at 260-64), to Crales on
Statute Law, at 366-8 and Wilberforce, Statute Law, at 310-11, which between
them set out an overwhelming weight of authority, sufficient to crush the 1994
Regulations.
7.
Repugnancy
23. The courts do
not favour implied repeal and rightly so. More than mere inconsistency is
required. The test is one of repugnancy, for which see the judgment of A L
Smith J in West Ham Church Wardens and Oversees V Fourth City Mutual Building
Society [1892] 1 QB 654 at 658 The test of whether there has been a repeal by
implication by subsequent legislation is this: are the provisions of a later
Act so inconsistent with, or repugnant to, the provisions of an earlier act
that the two cannot stand together? Plainly those provisions of the weights and
Measures Act 1985 which expressly authorise the use of Imperial weights and
measures cannot be reconciled with community law, which seeks to outlaw those
self-same weights and measures and force the European system of measurement
upon us by means of criminal sanctions, indeed force a change to our way of
life, so central are our much loved and familiar weights and measures to the
British way of life.
8. The
Factortame litigation
24. I have not left
out of account the Factortame litigation, during the course of which the
Divisional Court purported to issue an injunction to the Minister not to obey
Part II of the Merchant Shipping Act 1988. The background to the case (in which
I was instructed as counsel, at the very end, by certain UK fishing interests,
who were desirous of intervening under Order 53, but who did not pursue the
application) was that our fishing stocks were being depleted by Spanish fishing
vessels operating in British waters using the Red Ensign as a flag of
convenience. Quite properly Parliament outlawed this abuse and the Spanish
fishermen then sought to invoke community law, their intention being to use
European community law to allow them to sail in British waters under the
British flag, seizing a marine resource which under international maritime law
belonged to Britain, against the will of the British people as expressed by
their democratically elected Parliament. The litigation which resulted (and
which has just led to a further judgment of the House of Lords (16th December
1999) on the issue of damages) has been the most controversial since Darnel's
Case (1627) 3 St. Tr. 1, where the wrongful refusal of the judges to uphold the
common law' and grant Habeas Corpus to John Hampden and others helped plunge
the country into the Civil War (in which Colonel Hampden was to play a most
gallant role, ultimately sacrificing his life in the cause of Parliament and
freedom). In Factortame the judges with respect arguably went further than the
judges in Darnel's Case, because they refused to apply the Act of Parliament.
With the utmost respect that was unconstitutional and provided Parliament with
grounds for removing them (all higher judiciary appointments are subject to
removal for constitutional misconduct). The judges were fortunate that
Parliament was either supine or asleep.
25. I need not
consider the Factortame litigation in detail for the elegantly simple reason
that the case was not fully contested by the Law Officers, who chose not to
argue the obvious defence (with respect) of implied repeal. The result is that
the implied repeal point was not argued, indeed I have that on the authority of
one of the counsel for Factortame Ltd, who was present in the House of Lords,
who told me when I was brought in to advise the UK fishing interests that one
of the members of the panel (the late Lord Brandon of Oakbrook), a specialist
in maritime law, queried the failure to argue the point.
26. The leading
authority on the doctrine of stare decisis under the law of England is Cross
and Harris on precedent in English Law. The law is correctly ~ out at pages
158-161 of the 4th edition, citing authorities such as Baker V The Queen [1975]
AC 774 (PC) and the decision of the Court of Appeal in National Enterprises Ltd
V Racal Communications Ltd [1975] Ch.397. These are modern authorities but
there is nothing new or remotely difficult with the concept that decisions
without argument are not binding, the rule being set out in R V Warner (1661) 1
Keb 66, the authority of which to my knowledge has never been called into
question in any English court in the one-third of a millennium since.
27. The decisions
in Factortame, which are mostly taken up with the community law points in any
event, are not binding. The decisions on implied repeal to which I have
referred are however binding, in my opinion at every level of the judicial
system.
28. The proposition
that the courts would refuse to apply the weights and Measures Act 1985
involves saying that after having had the benefit of full argument on the law
of the constitution (which neither the Divisional Court nor the House of Lords
had in Factortame) the judges would wilfully and deliberately defy parliament.
Such a state of affairs has never occurred in all our long constitutional
history and is unthinkable. It is not for the judiciary to choose which laws
they will obey and which they will not, nor is the political opinion of any
individual judge or magistrate on whether we should have metric or (should have
metric or Imperial measurements or (as parliament has laid down) both, or
should or should not be members of the European community a relevant
consideration. The consequences of defying community law are for parliament to
consider. As with the Human Rights Act 1998 the courts are limited to declaring
that the act is inconsistent with the international (i.e. community) law
provision. The executive if so advised can then cure the defect either by
bringing in amending legislation and persuading parliament to accept it, or
persuading the European authorities to revoke Directives 80/181/EEC and
89/617/EEC, or withdrawing from the European Community, so that the repugnancy
disappears.
9. Community
Law
29. Community law
is clear: the UK is under an obligation to yield to metric and abolish the
Imperial system. I have even seen a suggestion from a civil servant (in a
circular referring to a letter of mine in the Daily Telegraph) that the
Directives have direct effect and should be applied without more by the courts,
an entirely novel suggestion given that there is an Act of Parliament standing
in the way!
30. The law of the
European Community is not however a relevant consideration for our courts
because they are not permitted to apply it unless authorised by Parliament.
That is because the United Kingdom, in common with all advanced and successful
countries, is a dualist jurisdiction, where international law has no effect
unless and until it has been incorporated into municipal law (see e.g. the
decision of the House of Lords in Brind [1991) 1 AC 696). In an ordinary case
the courts are authorised to apply community legal instruments by the European
Commnuities Act 1972. In this case there is no Parliamentary authority because
a later enactment has impliedly repealed the European Communities Act 1972 and
in accordance with the Law of the Constitution it is the duty of the courts at
every level to apply the later Act.
31. It is sometimes
asserted that we knew about the so-called supremacy of community law when we
signed up to the Treaty of Accession. That is partly true, although it is
tolerably clear that Parliament and the country were kept in the dark. It is
also true tosay that there is a rule of international law, reflected in Article
46(1) of the Vienna Convention on the Law of Treaties, whereby sovereign states
are taken to know the manifest features of the constitutions of all other state
parties to a treaty. The rule that one Parliament may not bind its successors
is a manifest doctrine of the Constitution of the United Kingdom of fundamental
importance, within the meaning of Article 46(1) of the Vienna Convention. It is
scarcely to be supposed that the delegates of the Six were so lacking in
competence as to be unaware that the perfect incorporation of an international
treaty in the United Kingdom is an impossibility (and rightly so). Our
community partners cannot be heard to complain.
32. It is possible
under community law to levy penalties for non-compliance, but that cannot apply
to the United Kingdom in this case, because no penny piece of the public
revenues may be expended without the sanction of Parliament, which is plainly
lacking in the instant case. The Luxembourg court could decide upon a penalty
but until the Weights and Measures Act is repealed or amended there is no
mechanism by which public funds could be used to pay it.
10. Vires of the
Regulations
33. I advise that
the Weights and Measures (Unit of Measurement) Regulations 1994 are ultra
vires, null and void and of no legal effect whatsoever. I need hardly go on to
consider the vires of the Weights and Measures Act (Metrication)(Amendment)
Order 1994, because the prosecution would be left in such an impossible
position once the first set of regulations had gone that they could scarcely
continue - indeed no prosecution should be commenced and any local authority
which did so would be engaged in unconstitutional defiance of Parliament. The
draftsman of the second set of regulations was so clearly labouring under the
delusion that the first set were valid that it is a strongly arguable that they
fall a fortiori.
34. There is a
further difficulty and it is this. No doubt with a view to avoiding proper
Parliamentary scrutiny (which is the whole purpose of these powers) the
Minister chose to use the Henry VIII clauses in the 1985 Act. These despotic
powers (named after King Henry VIII for that reason) were roundly condemned by
Lord Hewart of Bury, a most distinguished Lord Chief Justice, in his splendid
text, The New Despotism and I would wish neither to add anything to nor
subtract anything from that which the Lord Chief Justice said. These clauses
are construed tightly against ministers and rightly so. I have never heard of a
Henry VIII power being used to such devastating effect and certainly not in a
consolidation statute, which is presumed not to alter the law! I am very
doubtful indeed that this power has been used properly and I advise that the
second set of regulations are also ultra vires, although they are so tightly
bound up with the first set, which are so clearly ultra vires, that we need
hardly consider the Henry VIII point.
11.
ECHR
35. I am very
doubtful about the Article 10 point, but I do not need to consider it in
detail, given the effect of my earlier advice.
12.
Conclusion
36. No prosecution
should be commenced and if one were it would be as misconceived,
unconstitutional and improper as any prosecution ever brought. I can only
advise of course and I cannot speak for the courts, but I cannot conceive that
they would be willing to defy Parliament in the way that the minister suggests
that they should. If the Minister wishes to make it an offence to sell a pound
of apples he should first go to Parliament and get an Act which says so. This
one does not and the futile attempt to amend it by reference to an earlier Act
is of no legal consequence. I advise accordingly.
Michael Shrimpton,
of Gray's Inn, Barrister.
Dated this 22nd day
of December 1999