1.
Introduction
1. I am instructed
by Bennetts, solicitors, on behalf of the United Kingdom Independence Party, a
lawful and registered political party in the United Kingdom, to advise further
on the constitutional issues arising from the attempted introduction of
compulsory metrication without enacting primary legislation. This Opinion is
further to my earlier Opinion dated the 22nd day of December 1999 and
Supplementary Note dated the 23rd day of January 2000. Attention is drawn to my
earlier disclosures of a connection with the British Weights and Measures
Association, to whom I have the honour to be Honorary Constitutional Adviser,
and the Conservative and Unionist Party (also the Society of Conservative
Lawyers). No conflict of interest arises.
2. It so happens
that the minister who made the ultra vires Units of Measurement Regulations
1994 (SI 1994 No.2867) ("the Units of Measurement Regulations") and the Weights
and Measures Act 1985 (Metrication)(Amendment) Order 1994 (SI 1994 No.2866)
("the Amendment Order") held himself out as a Conservative. No constitutional
lawyer worthy of the name would alter his view because a minister responsible
for an unconstitutional act happened to be a member of his own party.
3. I adhere to my
earlier opinion that the Units of Measurement Regulations and the Amendment
Order are bad, because the Regulations conflict with primary legislation
enacted subsequently to the statute conferring the alleged power and the Order
depends upon the validity of the Regulations. Additionally the Order relies
upon the improper use of a Henry VIII power. In relation to the Henry VIII
power the only argument advanced since my Opinion (see paragraphs 5(1) and 19
et.seq. below) in my view strengthens the arguments against the validity of the
Order, because it relies on a separate Henry VIII power in the enabling Act
which does refer expressly to Imperial weights and measures but which was not
used.
4. It is always
good practice when writing an opinion to consider contrary arguments and to
refer to any authorities which might undermine the position being taken by
counsel. I have considered whether or not the legislation incorporating the
Single European Act and parts of the Treaty on European Union (Cm 1934), which
post-dated the Weights and Measures Act 1985 ("the 1985 Act"), might have a
bearing on the matter, not least because Directive 89/617/EEC seeks to amend
purported Directive 80/181/EEC and refers to Article 100a of the EEC Treaty, as
amended by the Single European Act. The 1985 Act is of course no more safe from
Implied Repeal than the European Communities Act 1972 ("the 1972 Act"), but
there is no reference to weights and measures in the post-85 legislation, which
in any event is amending legislation. Given that an amendment once made becomes
part of the original Act it is a moot point whether it can affect primary
legislation passed between the original and the amending legislation, although
I am an unaware of a case in point. Furthermore, the new Article 100a does not
replace the original Article 100 and adds no new substantive powers, concerning
itself with procedure (eg qualified majority voting) and derogations. The
metrication directive (ie the 1980 directive) was brought in under the
harmonisation power contained in the original Treaty of Rome and I do not
consider the 1985 Act to have been affected in any way by subsequent amendments
to the Treaty.
5. I am asked to
advise generally and I shall do so under the following specific headings :
- (1) the commentary on my
earlier Opinion and Note appearing in Trading Standards Review for July 2000;
- (2) observations on behalf of
the Minister following the receipt of my earlier Opinion and Note at the
Department of Trade and Industry (DTI);
- (3) venue and jurisdiction in
relation to the proposed legal challenge;
- (4) the vires of the Price
Marking Orders 1991 (SI 1991 No.1382) and 1999 (SI 1999 No.3042) and the Price
Marking (Amendment) Orders 1994 (SI 1994 No.1853) and 1995 (SI 1995 No.1441),
all purportedly made under s.4 of the Prices Act 1974;
- (5) the relevance if any of
the Weighing Equipment (Non-automatic Weighing Machines) Regulations 1988 (SI
1988 No.876);
- (6) the supposed inability on
the part of some Trading Standards departments to test Imperial scales;
- (7) compensation for purchase
of metric scales and damages generally where Imperial scales are seized;
- (8) the vires of Directives
80/181/EEC and 89/617/EEC and compliance with community law having regard to
the community law principles of proportionality and subsidiarity;
- (9) threats against the
United Kingdom made by a spokesman for the European Commission on the BBC and
the position generally of the United Kingdom against the European Community
under public international law;
- (10) the international
compliance of the Treaty of Rome and its validity in so far as it purports to
over-ride United Kingdom primary legislation and the jus cogens, in particular
the fundamental principle of the self-determination of all peoples, having
regard to the decision of the House of Lords in R -v- Bow Street Magistrates
Court ex p General Augusto Pinochet Ugarté [2000] 1 AC 147, approving
for the purposes of United Kingdom law the judgment of the International
Criminal Tribunal for the Former Yugoslavia in Prosecutor -v- Furundzija
(IT-95-17/1-T 10) and Article 53 of the Vienna Convention on the Law of
Treaties;
I hope that I have
not left anything out.
6. I had hoped to
be able to advise on counsel's opinion in response to my own. There have been a
number of suggestions since December 1999 from both local authorities and the
DTI that papers have been sent to counsel, although none has been named and no
member of the Bar has contacted me on the basis that he or she is in receipt of
instructions. I would expect counsel in those circumstance to contact me, if
only as a courtesy.
2. Internet
7. If (which is not
a matter for me) this opinion is made available on the Internet every effort
should be made to ensure that it is faithful to the master copy delivered
electronically to those instructing me. I am sure it is right that any
publication should be accompanied by a disclaimer. Counsel can only advise, he
or she cannot decide and most certainly cannot warrant that a court will not
make a mistake of law.
3. Trading
Standards Review
8. I shall now deal
seriatim with the points set out supra in paragraph 5. Whilst no professional
legal opinion has been forthcoming to contradict my own (a matter made the
subject of complaint in the article) an article appeared in the Trading
Standards Review (TSR) for July 2000, by Chris Howell, who is employed by ITSA
and is Lead Officer for Legal Metrology. The article is in direct response to
my Opinion and Note and has been circulated to many local authorities in the
country. Mr. Howell is kind enough to promote me to the august rank of silk,
however the Lord Chancellor is of a different view and I remain but a humble
polyester. In fairness to Mr. Howell he may have relied on a misdescription of
me placed on the Internet. I have of course asked TSR to print a correction.
9. Mr. Howell does
not claim any expertise in constitutional law, a concession which with respect
I regard as realistic - ne supra crepidam sutor judicaret. I do not profess to
follow the complaint about delay in enforcing a standard system of weights and
measures - the Imperial system is uniform and there are United Kingdom primary
standards for all the basic Imperial weights and measures. A pound weighs as
much in Surrey as it does in Lancashire or for that matter Queensland. With
great respect to Mr. Howell he makes six basic, substantive errors :
- (1) he fails to understand
the mechanism (Implied Repeal) by which a later Act of Parliament over-rides an
earlier;
- (2) he fails to apply a
strict construction to the Henry VIII powers in the Weights and Measures Act
1985 Act ("the 1985 Act") and in particular fails to read s.1(3) in accordance
with the expressio unius est exclusio alterius Rule;
- (3) he fails to appreciate
the relationship between community and municipal law and appears to regard the
EU as a sovereign in international law;
- (4) he fails to appreciate
the constitutional difference between primary and secondary legislation;
- (5) he mis-states the
composition of Parliament and in particular fails to apply the Doctrine of
Threefold Consent which lies at the heart of our Constitution:
- (6) he appears to treat ultra
vires statutory instruments as voidable. I shall deal respectfully with each of
these egregious errors in turn.
4. Implied
Repeal
10. The mechanism
of Implied Repeal is well-known to the law, as I endeavoured to explain, albeit
not to Mr. Howell's satisfaction, in my Opinion and Note. As Parliament may not
bind its successors a subsequent Parliament is at liberty to legislate as it
pleases, a constitutional fundamental recognised by the draftsman of the Human
Rights Act 1998, who realised that it could not be made safe against Implied
Repeal. The principle is well expressed by Todd (Parliamentary Government in
the British Colonies, 1st ed. (1880) at 192, cited with approval by Professor
Dicey, The Law of the Constitution, 10th ed.(1959) at 67-8) : It equally is
certain that a Parliament cannot so bind its successors by the terms of any
statute, as to limit the discretion of a future Parliament, and thereby disable
the Legislature from entire freedom of action at any future time when it might
be needful to invoke the interposition of Parliament to legislate for the
public welfare (emphasis added)
11. The great
Professor Dicey, the foremost authority on the British Constitution of his or
any other age, went on (at 69-70) to describe the over-arching Sovereignty of
Parliament in his own words, words which no British or Commonwealth court has
ever dared disapprove : Parliament can legally legislate on any topic whatever
which, in the judgment of Parliament, is a fit subject for legislation. There
is no power which, under the English constitution, can come into rivalry with
the legislative sovereignty of Parliament. No one of the limitations alleged to
be imposed by law on the absolute authority of Parliament has any real
existence, or receives any countenance, either from the statute-book or from
the practice of the courts. This doctrine of the legislative supremacy of
Parliament is the very keystone of the law of the constitution. (emphasis
added)
12.I advise that
the Law of the Constitution is correctly stated in these magisterial passages.
The rival to Parliament put forward by Mr. Howell is a group of officials in
Brussels, whose decisions as I explained in my Opinion (eg at paragraph 30)
have absolutely no force of law at all in the United Kingdom unless Parliament
says so. In s.2 of the 1972 Act Parliament did say so, but what Parliament does
it can undo and in s.1 of the 1985 Act it over-rode s.2 of the 1972 Act. As
Lord Templeman (with respect correctly) said in his speech in Duke -v- GEC
Reliance Ltd [1988] 2 WLR 359 at 362-3 the alleged entrenching mechanism in
s.2(4) of the 1972 Act does no more than emphasise the binding nature in
community law of community rights and obligations : non impedit clausula
derogatoria quo minus ab eadem potestate res dissolvantur a qua constituunter.
"Parliament can do as it pleases" (per Lord Greene MR, in Norman -v- Golder
(1944) 171 LT 369 at 371 (CA)) and in 1985 it pleased Parliament to re-enact
Imperial weights and measures in primary legislation, driving a coach and
horses through directive 80/181/EEC in the process.
13. As the Court of
Appeal held in Ellen Street Estates Ltd -v- Minister of Health [1934] 1 KB 590
it matters not that there are no express words of repeal. An Act which is
impliedly repealed, either in whole or in this case in part, is no less
repealed impliedly than it is expressly, in the same way that the implied term
of a contract has no less legal force than an express term. The effect in law
of later incompatible legislation is just as if the earlier legislation had
been included in a Schedule of Repeals. If the unanimous decision of a strong
Court of Appeal, with no less a legal mind than Lord Justice Scrutton
presiding, approving an earlier unanimous decision of a powerfully constituted
Divisional Court including one of the greatest Common Law judges of the
twentieth century (Vauxhall Estates Ltd -v- Liverpool Corporation [1932] 1 KB
733) is not authority enough for Mr. Howell (it is for me) he should look at
the leading speech of Lord Dunedin in the House of Lords in Minister of Health
v- The King ex p Yaffe [1931] AC 494, in particular at 503 : What that comes to
is this : The confirmation makes the scheme speak as if it was contained in an
Act of Parliament, but the Act of Parliament in which it is contained is the
Act which provides for the framing of the scheme, not a subsequent Act. If
therefore the scheme, as made, conflicts with the Act, it will have to give way
to the Act. The mere confirmation will not save it. It would be otherwise if
the scheme had been, per se, embodied in a subsequent Act, for then the maxim
to be applied would have been "Posteriora derogant prioribus." (emphasis added)
14. Yaffe is
particularly relevant because as the 1st Viscount Dunedin of Stenton (a very
strong judge, formerly Lord Advocate, Lord-Justice General and Lord President
of Scotland, with 56 years experience in the law when he wrote that speech)
explains, secondary legislation cannot prevail against inconsistent primary
legislation and earlier legislation cannot prevail against later. Viscount
Dunedin, who it should be noted was a Lord of Appeal in Ordinary of nearly two
decades standing when he wrote that speech and by then had greater legal
experience than any judge now sitting in England and Wales or Scotland, also
deals with the confirmation point, to which I return below at paragraphs 42 et.
seq.
15. No-one should
make the mistake of thinking that the cases to which I have just referred are
the only authorities on Implied Repeal, although they are quite sufficient
authority on their own for saying that the Units of Measurement Regulations are
bad, with inevitable consequences for the Amendment 0rder. One can just imagine
what Lord Dunedin would have said to counsel trying to persuade him that a set
of regulations made under an old Act of Parliament could amend a later Act. The
particular value of the Court of Appeal and Divisional Court cases is that the
earlier Act expressly sought to bind future Parliaments (see paragraphs 17-22
of my Opinion, which refer back to the majority judgments in the Court of
Appeal) and Yaffe is given additional value as precedent because the House of
Lords were looking at secondary legislative powers. Edward Wilberforce, the
father of modern statute law, in his masterly treatise (said with veneration
and respect) Statute Law : The Principles Which Govern the Construction and
Operation of Statutes, lists no fewer than 17 examples of Implied Repeal,
including of a treason statute (33 Hen.VIII c.23) and my favourite, concerning
the exemption from impressment of harpooners in the important Greenland fishery
trade (13 Geo.II c.28)(2nd ed., 1881, at 311 et.seq.). The principle applies
across all common law jurisdictions and is applied to State legislatures and
Congress in the United States, a useful compendium of several hundred older
cases appearing in Crawford, The Construction of Statutes (1940), p.629 et.
seq., including State -v- Superior Court of King County (1910) 60 Wash.370, 111
Pac.233, (Supreme Court of Washington State) emphasising that the intent of the
legislature must be established from the terms and provisions of the later
enactment (ie you can just about forget the European Communities Act, because
the intent of the legislature in 1972 is irrelevant when determining the intent
of the legislature in 1985). The question is : did Parliament intend to
continue Imperial weights and measures in 1985? The answer, manifestly, is yes
and that is all we need to know about Parliament's intent.
16. The draughtsman
of the Act of Union with Scotland 1706 was no less ambitious than the
draughtsman of the 1972 Act, providing in Article 25, which refers to essential
and fundamental requirements of the Union, that every professor of a Scottish
university should subscribe to the Confession of Faith. Essential and
fundamental it may have been in 1706 but in 1853 the requirement was swept away
by the Parliament of the United Kingdom in the Universities (Scotland) Act.
Like language in the Act of Union with Ireland 1800 was intended to entrench
the union of the established Church of England and Ireland (Dicey, Law of the
Constitution, 10th ed., at 66), but the religious union between England and
Ireland was swept away by the Irish Church Act 1869.
17. Only a litigant
in person would argue that the 1853 or 1869 Acts were invalid or that the
Anglo-Scottish-Irish Parliaments of 1853 and 1869 were bound by their
predecessors in 1706 and 1800, or that the Republic of Ireland has no legal
existence because the Irish Free State (Agreement) and Constitution Acts 1922
conflicted with the Act of Union with Ireland, which they undoubtedly did. It
matters not whether the later Acts repealed the earlier expressly or by
necessary implication - repeal them they did. As the High Court of Australia
stated in 1907, "the latest expression of the will of parliament must always
prevail" (Goodwin -v- Phillips (1907) 7 CLR 1, at 7, cited with approval in
Craies on Statute Law, 7th ed. (1971) at 366).
5. Other
Statutes Impliedly Repealed
18. It was held in
R v Davis (1783) 1 Leach 271 that the Stealing of Deer Act 1776 impliedly
repealed the famous "Black Act" of 1722, without there being any express words
of repeal, a matter of considerable interest to the defendant because the
penalty under the later Act was a maximum fine of £20 and under the
earlier death by hanging. In Re Drummond [1891] 1 Ch. 524 the Married Womens
Property Act 1882 was held to have impliedly repealed an Act of 1833. Similarly
s.58 of the County Courts Act 1846 was impliedly repealed by the Nuisance
Removal Act 1848 (R v Harden (1852) 22 LJQB 299). The Wild Birds Protection Act
1872 was impliedly repealed by the Preservation of Wildfowl Act 1876 (Whitehead
-v- Smithers (1877) 2 CPD 553). These and other examples are all to be found
set out with approval in Maxwell on Statutes (12th ed, 1969, at 193-6). Section
10 of the County Courts Act 1875 impliedly repealed s.45 of the Supreme Court
of Judicature Act 1873 (The Dart [1893] P 33 (CA)). Section 7 of the Mortmain
and Charitable uses Act 1891 impliedly repealed the Gifts for Churches Act 1803
(Re Douglas [1905] 1 Ch.279).
6. Section 1(3)
of the 1985 Act.
19. Mr. Howell
states that if Parliament had not envisaged changing to metric only it would
not have provided a power in s.1(3) of the 1985 Act to add or remove units of
measurement from Schedule 1 (I note the absence of reference to Hansard). This
argument is a double-edged sword, because the minister did not use the power in
s.1(3). As Mr. Howell accepts the purported power used for the Amendment Order
was that contained in s.8(6), which nowhere refers expressly to Imperial
measures, in stark contrast to s.1(4), limiting the power in sub-section (3).
Even worse for Mr. Howell, with respect, s.1(4) states that the sub-section is
"without prejudice to section 8(6)(b) below." When we look again at s.8(6) we
see that (b) refers back to limited measures such as the ounce troy and 125 ml
measures (except for alchohol). It is s.8(6)(a) on which the Minister is
relying, which presumably the draughtsman intended to be prejudiced by s.1(4)!
If that was his intention he has succeeded.
20. How is the
minister's position improved by the fact that the 1985 Act provides for two
Henry VIII powers : one (s.1) which refers expressly to Imperial measures which
he didn't use and one (s.8) which doesn't but which he did use? The rule of
construction is expressio unius est exclusio alterius (Craies, op cit at
259-60). The irresistible inference is that the s.8 power, which uses weak
general words such as "any" was not intended to refer to Imperial measures. The
expressio unius rule does not always apply but is very difficult to exclude on
a strict construction when the effect of applying it is to narrow the scope of
the enactment.
21. No doubt Mr.
Howell would say that a purposive approach to construction should be adopted.
He appears to be saying that the power in s.1(3) suggests that Parliament's
purpose was to have a dual system for a temporary period, having regard to the
community directive, with Imperial weights and measures being removed at the
end of the derogation period under s.1(3). If that was Parliament's intention
why didn't it say so and in particular why did it not make provision in the Act
for Imperial weights and measures to be phased out at the end of the derogation
period? The Act is not a temporary Act, it makes no reference to the directive
and worse, from the point of view of the minister, there is an express
reference to charging fees for performance of community obligation in s.76.
Again, on the expressio unius principle, the implication is that in the
remainder of the Act Parliament was not implementing community obligations.
22. In any event it
is not permissible to apply a purposive construction to the Act as a whole or
ss.1 and 8 (the Henry VIII powers) in particular. Dealing firstly with the Act
as a whole, it is a consolidation act and as I explained in my first Opinion
(paragraph 7) is presumed not to alter the law. It is not even as though the
acts being consolidated were intended to bring in compulsory metrication. So
far to the contrary the Weights and Measures Act 1963 pre-dated the UK's
accession to the EEC and the Weights and Measures Act 1979 pre-dated the main
1980 directive. There is a rebuttable presumption, which cannot prevail against
the express words of an enactment, that Parliament intends to comply with our
international obligation but even Mr. Howell admits (in the 12th paragraph of
his article) that at the date of enactment there was no binding obligation on
the UK to implement the Directive, the implementation of which had been
postponed. It would not be permissible however to look at the directive,
because resort may only be had to international instruments in the event of
ambiguity (Bloxam -v- Favre (1883) 8 PD 101, Burns Philp & Co -v- Nelson
& Robertson Pty Ltd [1958] 1 Lloyd's Rep. 342 (High Court of Australia),
Salomon -v- Customs and Excise Commissioners [1967] 2 QB 116 (CA)), not this
case. On the same basis resort may not be had to Hansard - even the doubtful
modern relaxation of the rule against consulting Hansard, which in practice has
resulted in the courts construing statutes according to the will of the
executive rather than the will of Parliament, does not extend to over-riding
clear words in an enactment. Even if it were permissible to adopt a purposive
construction it would make no difference because the stated purpose of the 1985
Act was "to consolidate certain enactments relating to weights and measures,"
ie to continue the dual system largely as it had been since 1897.
23.The House of
Lords held in Pickstone & ors -v- Freemans plc [1989] AC 66 that it was
proper to give a purposive construction to the Equal Pay Act 1970, as amended
by the Sex Discrimination Act 1975, so as to arrive at a result consistent with
our community obligation, but that was a statute which was subject to the later
1972 Act, which plainly was enacted (as amended) to give effect to a community
obligation and which was in any event a piece of reforming social legislation
where a purposive construction is permissible. The 1985 Act is not subject to
the 1972 Act and over-rides it, was not enacted to give effect to a community
obligation which in any event only became an obligation many years later (eg on
1st January 2000 in relation to goods sold loose in bulk), is not ambiguous,
must be construed if possible so as not to alter the existing law and whose
alleged operative clauses (the Henry VIII clauses) must under the Law of the
Constitution be construed strictly against the Executive (The New Despotism,
Lord Hewart of Bury CJ (whose mastery of constitutional principle with respect
knew no bounds), passim, R -v- Secretary of State for Social Security ex p
Britnell [1991] 1 WLR 198, Hyde Park Residence Ltd -v- Secretary of State for
the Environment, Transport and the Regions & or, The Times, 14th March 2000
(CA), citing Bennion, op cit, Britnell and R -v- Secretary of State for Social
Security ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275).
7. Permissible
Construction of the Henry VIII Clauses
24. Here we enter
into unfamiliar territory for many modern lawyers, some of whom tend to view
strict construction as though it were witchcraft, forgetting that the purposive
rule itself is centuries old, was applied properly on many occasions prior to
our joining the European Community but is constitutionally inappropriate in
certain cases, including Henry VIII clauses.
25. What traps are
there for the unwary draughtsman in ss.1 and 8 and how would a master of the
art of strict construction such as Mr. Justice Wright (see Re Athlumney ex p
Wilson [1898] 2 QB 547, which when compared with some modern attempts at
strict, non-retroactive, construction is like comparing a Turner with a Tracey)
set about pulling these Henry VIII powers apart? It must be remembered that the
doctrine of strict construction when properly applied is one of the checks and
balances in our Constitution, in this case preserving the Doctrine of the
Separation of Powers. The minister's purpose in putting a Henry VIII power into
a statute, like the eponymous King before him, is to take power away from
Parliament and the people and give it to himself. We are concerned here to
frustrate the minister's tyrannical purpose not implement it - the very
opposite in fact of a purposive construction. The constitutional justification
is the maintenance of the Balance of Power between the Legislature and the
Executive, with the Judiciary taking the part of the Legislature, which has the
remedy of using clear statutory language if it really wishes to delegate its
power to amend primary legislation to the Executive.
26. The huge flaw
in s.8(6), immediately apparent to any competent draughtsman (it is interesting
to speculate that it may have been a poison pill slipped past the minister by
good parliamentary counsel, disapproving of the attack on Parliament's
privileges) is the repeated use of the general word "any." To the liberal
constructionist "any" is a general word meaning everything but to the strict
constructionist it is a vague word meaning nothing : to cite the great jurist
(Bac.Max.,reg.10, see Broom's Legal Maxims, 10th ed., at 438): verba generalia
restringunter ad habilitatem rei vel personæ. Having regard to the
existing law and the status of the 1985 Act as a consolidation statute we could
quite properly restrict the meaning of 'any' to 'any metric measurement,' a
strict construction given considerable purchase by the express mention of
Imperial measurements in the previous Henry VIII clause and the absence of any
reference to Imperial measurements in this.
27. An equally
permissible alternative would be to restrict the power in respect of Imperial
measurements to a power to add, given that a number of Imperial weights and
measures unaccountably are left out of Schedule 3, eg the stone, the
hundredweight, the ton, the rood, the acre, the cable, the fathom (of timber),
the league, the flagon and the firkin. Thus the minister has power under s.8(6)
to add the firkin but not to interfere with the existing law by removing the
gallon, for which he would have to go back to Parliament. Now the minister may
cry 'but Parliament would never allow me to get away with that,' to which the
reply would be : quod erat demonstrandum. That is why the courts strictly
control the exercise by the executive of these thoroughly undemocratic and
obnoxious powers, which were condemned and rightly so by the Donoughmore
Committee on Minister' Powers in 1932 (Cmnd 4060) as "inconsistent with the
principles of parliamentary government" (p. 59).
28. The power under
s.1(3) may equally be cut down to a power to add only, both Henry VIII clauses
giving the power to add as well as take away. It is more difficult in the case
of s.1(3) because of the saving for the mile, foot and inch in s.1(4)(a) and
the gallon or pint in s.1(4)(b) but those exceptions would be implied anyway.
The expression of that which is implied works nothing and all that is required
is a robust application of the maxim expressio eorum quæ tacite insunt
nihil operatur, constitutionally appropriate in this case to keep the executive
in check and Parliament in control of its own legislation.
29. In responding
to Mr. Howell's challenge to develop my arguments on the Henry VIII point more
fully, I have not I hope missed the wood for the trees : the power in s.1(3) is
not relevant because it has not been used and the free-standing arguments about
s.8(6) scarcely matter because the Units of Measurement Regulations were not
brought in under the 1985 Act at all and as I explained in my first Opinion
(paragraph 33) the Order so clearly rests on the invalid assumption that the
Regulations existed that I am far from sure that any competent counsel would
try to defend them, indeed any scheme of amendment which rested on the
Amendment Order alone would be open to the objection that it was irrational
(how could it be rational for a statutory instrument to say that it was lawful
for a customer to ask for and a greengrocer to sell a pound of apples but
unlawful for the trader to weigh them out when the law rightly prohibits
short-selling?) Relationship between EC and UK law
30. Mr. Howell uses
the word 'legal' in an interesting way in his paragraph 12. He says it was
"legal" to use Imperial units in 1985, but in such a way as to suggest that it
would be not be legal once the derogation in the directive expired. With
respect that is not the right way of looking at it at all. Whatever may be the
position under community law, if Parliament says something is legal then it is
legal, derogation or not. If a statute after 1972 conflicts with community law,
like the 1985 Act (all pre-1972 statutes are expressly or impliedly repealed by
the 1972 Act and are subject to community law) it is still a statute. As
Stephen Brown J. (as he then was) said in Farrall -v- Department of Transport
[1983] RTR 279 (at 291), where Mr. Farrall was desirous of being allowed to
drive a motor car on British roads without a licence as required by s.85 of the
Road Trafic Act 1972 : But when he seeks a declaration that section 85 should
be regarded as being null and void as against nationals of member states of the
Community who have successfully passed driving tests in a member state of the
Community other than the United Kingdom, I think he is seeking a declaration
which it would be impossible to grant. It is a misunderstanding that any
statute can be regarded as null and void because of the EEC Treaty. What is
required is that the member state shall introduce regulations or legislation
which shall give effect to decisions which are binding because of the Treaty.
That of course has now been done. (emphasis added)
31. That is a
correct statement of the law by Stephen Brown J, as one would expect with
respect. Had it been cited in any of the Factortame cases the courts would not
have fallen into error, which of course is why we have a rule that decisions
reached without argument are not authority (first Opinion paragraph 26). When
the learned judge refers to amendment by regulation it should be understood
that the Road Traffic Act 1972 (c.20) preceded the European Communities Act
1972 (c.68) and in accordance with the rule in Lord Brougham's Act was
vulnerable to repeal both express and implied (the old rule was that acts came
into force at the same time at the end of the session in which they were
passed). Of course had the Road Traffic Act been held up in its passage through
Parliament and passed after the European Communities Act it would take
precedence and would need primary legislation to bring into line with community
law.
32. It is the same
with any international treaty. The Treaty of Rome is not the only treaty
incorporated into our law (see eg the Diplomatic Privileges Act 1964, the
Genocide Act 1969, the Asylum and Immigration Appeals Act 1993 and the Human
Rights Act 1998), although it is unusual because of its direct effect
provisions. As with any other dualist jurisdiction, where international law is
not automatically part of municipal law, the international law must be
incorporated - The Parlement Belge (1879) 4 PD 129, Attorney-General for Canada
-v- Attorney-General for Ontario [1937] AC 326 and Maclaine Watson -v-
International Tin Council [1990] 2 AC 418. This fundamental rule cannot be got
around by the sidewind of direct effect, which is simply a treaty rule, of no
application in the United Kingdom unless Parliament says so. There are contrary
statements in some of the texts (eg Dixon, Textbook on International Law, 2nd
ed at 79-80) but these simply assume that Factortame is good law, in the
example given without explaining how, save to say that the Treaty of Rome has a
"special status," which it most emphatically does not, as Stephen Brown J.
confirmed in Farrall. It is an international treaty like any other, concluded
between sovereign states, governed by the Vienna Convention and the jus cogens
and relying on an Act of Parliament in order to have any legal effect in the
United Kingdom.
9. Non-Sovereign
Status of the EC/EU
33. In the case of
the Treaty of Rome the waters have of course been muddied with nonsensical talk
of "pooling sovereignty," a legal impossibility. There was no revolution in
1972, HM Queen Elizabeth II was not thrown over as Head of State in favour of
Mr. Roy Jenkins or any other President of the European Commission, nor was the
Constitution destroyed nor the British State extinguished. The United Kingdom
remained a Sovereign State in international law, free to enter into treaties
with other Sovereign States, remaining a Permanent Member of the UN Security
Council and NATO in her own right. I am aware that some in the EC would like to
see the UK's seat on the Security Council given up in favour of the EU, but
that is somewhat ambitious since only States Members of the United Nations
(emphasis added) may sit on the Security Council (Article 23(1) of the UN
Charter), the EU is not a Member of the United Nations, is not eligible for
membership (Article 4(1) of the Charter) and the UK rightly has a veto on any
amendment to the Charter (Articles 108 and 109(2)).
34. Although the
Commonwealth of Nations, membership of which is also restricted to Sovereign
States, was severely disadvantaged in terms of trade the United Kingdom
remained a member state. I am not aware that any Ambassador was withdrawn or
diplomatic mission to the United Kingdom downgraded on the basis that we were
no longer a state, albeit that we enjoyed less international influence and
prosperity as a consequence of EEC membership (broadly speaking economic growth
declined by about one-third and we moved from a trade surplus with the EEC
member states to a structural deficit, indeed so far from membership bringing
increased prosperity we had to be bailed out by the International Monetary Fund
within 3 years of joining).
35. The United
Kingdom retained the power to wage war (which she would not have done had she
given up her sovereignty) and did so in 1982 when one of her colonies was
invaded and again in 1991 when a former British Protectorate was invaded. The
other member states remained neutral in the Falklands War, whereas if
sovereignty had been pooled they would have been deemed under international law
to be belligerent powers. Correctly other EC member states were not consulted
by the War Cabinet on the conduct of hostilities, for example when the decision
was taken on 2nd May 1982 to permit an SSN attack on the enemy cruiser ARA
General Belgrano. The waging of war in each case was an undoubted exercise of
national sovereignty by a sovereign power and the Armed Forces of the Crown
served (and served well) as such, an instrument of British not European
Community power. British warships in the Falklands War flew the White Ensign,
not the EC emblem, indeed they would have been in breach of the Hague Rules and
the 1977 Geneva Protocol 1 (see eg Article 39) had they flown the EC emblem in
preference to the White Ensign.
36. Now as those
instructing me well know the Treaty of Rome provides for ever closer union and
to that extent the ambition of the EC to become a state in international law is
set out in the Treaties, including now of course the Treaty on European Union.
The EU is not however a state in international law, nor does it hold itself out
as one, despite conceits such as an anthem and a flag. Our Liege Sovereign Lady
Queen Elizabeth II is still our Head of State. Her Majesty the Queen of the
Netherlands is still the Head of State of her Kingdom and His Majesty the King
of the Belgians remains the Belgian Head of State. Aliter if and when the EU
transforms itself into a state. If the Dutch people so wished their Queen would
then cease to be Head of State, in favour of an elected or appointed EU
President, and there would no longer be a state called the Netherlands.
37. It is
unimaginable of course that such a state of affairs would ever prevail in
respect of the United Kingdom. If it did only then would an Act of Parliament
cease to prevail over community law, not as a result of any rule of the
Constitution of the United Kingdom because there would no longer be a Kingdom,
United or otherwise and no longer a Constitution, although some internal rules
and customs would continue to apply in so far as they did not conflict with
federal law, but as the result of the constitution of the new European state
howsoever defined, insofar as it could in practice impose its will in its
British territories.
38. The only other
circumstance in which an EC directive could prevail over an Act of Parliament
post-dating 1972 would be in the event of war and the armed occupation of all
or part of these islands. Fresh primary legislation would be unlikely and
directives contrary to existing (ie post-1972) primary legislation would only
take effect de facto where they could be imposed by force. They would not take
effect de jure. In 1940 for example there were emergency plans for King George
VI to go to Canada. Even if a puppet Parliament had continued to sit it could
not have enacted primary legislation without His Assent.
39. Wild theories
have been advanced down the years about HRH the Duke of Windsor being installed
by the occupying power (there is no evidence for it) but he had given up his
right to the Throne by means of primary legislation (His Majesty's Declaration
of Abdication Act 1936, s.1(2)) and could not regain it without fresh
legislation which would have required his brother's signature. No de jure
legislation could have been passed by the occupying power.
40. It may be
protested that we are a long way from weights and measures and so we are, but
the above scenarios, which are admittedly improbable, serve to illustrate how
disloyal and offensive it is to attempt to deny the right of Her Majesty Queen
Elizabeth II in Parliament to legislate for the United Kingdom. Indeed it is a
praemunire. There can be no lawful denial of the competence of Parliament to
enact the Weights and Measures Act 1985 and no doubting the validity of the
highest form of legislation known to our Constitution. As Bennion puts it (op
cit, Draft Code Section 140): The one thing a sovereign legislature cannot do
is truncate its own sovereignty by restricting its successors. A Parliament
sovereign today must also be sovereign tomorrow ... non impedit clausula
derogatoria quo minus ab eadem potestate res dissolvantur a qua constituuntur.
10. Primary
versus Secondary Legislation
41. Mr. Howell
argues that there is some relevance to the date of 1994 Regulations and Order.
With respect this is to mistake the difference between primary and secondary
legislation. A Minister of the Crown is a member of the Executive and has no
legislative power, except as may be delegated by the Legislature. The relevant
date is that of the primary legislation (see eg Yaffe, cited above at paragraph
13). In order to see what power the minister had in 1994 we must look back to
1972, in so far as he relies on a 1972 statute. A minister could have no
greater power to legislate under the 1972 Act in 1994 than he did in 1972.
11. Threefold
Consent
42. Mr. Howell
relies on the approval of the 1994 delegated legislation by the House of
Commons and the House of Lords. This is not approval by Parliament, nor do the
two Houses of Parliament have any legislative power by themselves. Prince's
Case (1606) 8 Co.Rep.1a (see also Coke, 4 Co. Inst. 24) confirmed the doctrine
of Threefold Consent (as it is described by Bennion, op cit, at Draft Code
s.27), which was already three centuries old and had been established by the
time of the enactment of the Revocatio Novarum Ordinationum in 1322. Mr. Howell
is in good company however. No less a personage than the Governor of the Bank
of England made the same mistake in 1913 when a Mr. Thomas Gibson Bowles was
desirous of not paying income tax on the dividends on his Irish Land Stock, on
the ground that the said deduction had only been authorised by a Resolution of
the Commons Committee for Ways and Means. The problem was that this procedure
had been followed since the Income Tax had been re-introduced the previous
century and although the rate of tax was usually confirmed in the Finance Act
the effect of Mr. Bowles' argument was that most of the income tax raised in
England for upwards of fifty years had been levied unlawfully. He argued his
case in person, citing inter alia Magna Carta. He was quite right of course - a
resolution even of the whole House, even if proposed by the Government of the
day, is not law and tax can only be levied by statute. Correctly Parker J.
ruled that the Bank of England had acted unlawfully in seeking to deduct income
tax (Bowles -v- Bank of England [1913] 1 Ch. 57).
43. Almost every
ultra vires regulation has been approved either by negative or positive
resolution in both Houses, one example helpfully being given by Mr. Malone, the
Principal Trading Standards Officer for the Metropolitan Borough of Wirral in
his letter to those instructing me dated 18th July 2000, the purported
regulations being the Oral Snuff (Safety) Regulations 1989 (SI 1989 No 2347).
Mr. Malone may of course have been unaware that he was demolishing a key plank
in the argument being put by Mr. Howell in the same month. The alleged Oral
Snuff (Safety) Regulations were purportedly made under ss.10 and 11(5)(a) of
the Consumer Protection Act 1987. Their approval by both Houses under the
negative resolution procedure (s.11(6)) did not alter matters and rightly so.
44. Many other
examples are to be found in the books, eg purported regulation 8 of the Excise
Warehousing (Etc) Regulations 1982, which were declared by Mustill LJ (as he
then was) and Neill J (as he then was) in the Divisional Court to be ultra
vires, null and void (R -v- Customs and Excise Commissioners ex p Hedges and
Butler Limited [1986] 2 All ER 164). Certiorari was not of course needed as an
ultra vires regulation is void and has no legal existence, so there is nothing
to be quashed (see paragraphs 47-8 below). Another example of an ultra vires
Customs regulation will be found in Customs and Excise Commissioners -v- Cure
and Deely Ltd [1962] 1 QB 340. Immigration rules made under s.3 of the
Immigration Act 1971 are subject to a negative resolution procedure (s.3(2) of
the Act) but that has no bearing on their validity and Simon Brown J. (as he
then was) correctly with respect struck down a severable part of the dependent
family rules in R -v- Immigration Appeal Tribunal ex p Manshoora Begum [1986]
Imm AR 385. Confirmation by a minister (eg under s.40 of the Housing Act 1925)
similarly will not save a scheme (Yaffe, supra, per Viscount Dunedin at 503).
For an example of a purported regulation struck down by the House of Lords as
ultra vires after it had been laid before Parliament (under s.52(2) of the
Prison Act 1952) see Raymond -v- Honey [1983] AC 1.
45. The highest at
which it can be put is that a court will have regard to the opinion of the
Houses of Parliament if considering the reasonableness of a regulation, on the
basis that neither the Commons nor the Lords would lightly approve an
irrational regulation, but at the end of the day if the regulation is
Wednesbury unreasonable (Associated Provincial Picture Houses Ltd -v-
Wednesbury Corporation [1948] 1 KB 223) it is the court's duty to strike it
down, as in Manshoora Begum. Where as here the regulations are illegal and
unconstitutional confirmation by both Houses of Parliament is not a material
consideration.
46. This rule
reflects political reality, in that Parliamentary scrutiny of delegated
legislation as a matter of practice is derisory, a point well made by Evans
(Legislative Drafting, 3rd ed (1987) at 271). Not only is scarcely any
Parliamentary time made available adequately to scrutinise the flood of
regulations (now over 3,000 a year), but there is no power of amendment. It is
precisely for these reasons of course that tyrannically inclined ministers
prefer secondary to primary legislation.
12. Ultra Vires
regulations are void
47. Mr. Howell's
final mistake (with respect) is to rely on the so-called presumption of
validity, a mistake made by a number of the senior local authority officers
whose letters to those instructing me are enclosed with my instructions. There
is a much misunderstood maxim omnia praesumuntur rite et solemniter esse acta
the effect of which is to presume that official actions are lawful, but it
carries little weight and is easily displaced. Voidability is a dangerous
European concept which attaches a spurious legality to unlawful ministerial
acts. Both the Divisional Court and the Court of Appeal (even Lord Denning,
until he recanted - see Denning, The Discipline of Law, at 77) have flirted
with it, making a series of wrong decisions which if they had not been
overturned or over-ruled would have established, wholly contrary to the
principle of our constitution, that ultra vires regulations have legal effect
unless and until overturned on judicial review. Part of the danger rests with
the discretionary nature of judicial review, which permits relief to be
withheld even where illegal official conduct is established, so that some
judges were in effect claiming the right to allow ministers to break the law. A
series of important House of Lords decisions (R -v- Immigration Appeal Tribunal
ex p Bakhtaur Singh [1986] Imm AR 352, Chief Adjudication Officer -v- Foster
[1993] AC 754, Director of Public Prosecutions -v- Hutchinson [1990] 2 AC 783)
has now put paid to the suggestion that you must first go to the Divisional
Court to quash a regulation, a suggestion which with respect was thoroughly
unconstitutional, struck at the heart of the Rule of Law and should never have
been ventilated in an English court. You can of course go to the Divisional
Court as one way of 'quashing' an illegal set of regulations, but even if you
do you need declaratory relief only, because ultra vires regulations (like
those we are concerned with here) have no legal existence - that is why
experienced leading counsel for the applicants in the Hedges and Butler case
(paragraph 44 supra) correctly sought a declaration only (the relief sought is
set out at 165).
48. Lord Hailsham
of St. Marylebone LC with respect stated the law correctly in London &
Clydeside Estates Ltd -v- Aberdeen District Council [1980] 1 WLR 182 at 189
(HL). A person may choose to ignore a patently illegal official act or order
and rely upon its illegality as a defence if necessary. I am sure Lord Hailsham
would have no hesitation in describing a regulation which conflicted with clear
words in primary legislation as patently illegal.
13. Observations
on behalf of the Minister
49. I am shown a
letter from the Director of Consumer Advice and Information at the DTI to the
Assistant Director of LACOTS dated 24th January 2000, giving the Department's
views on my Opinion. The first thing to be said is that the DTI appear to have
been remarkably slow to obtain the opinion of Treasury Counsel, or, perhaps, to
disclose it. Of course there is always the danger, from the point of view of
the minister, that competent counsel might be familiar with the law, or
possibly even look it up. The only argument put forward on the minister's
behalf is the interesting suggestion that : the vast majority of lawyers
believe so long as the Act is on the statute book it has the effect that
Community law, and any legislation that implements Community law, prevails even
over subsequent primary legislation.
50. With respect
this is the last resort of the desperate civil servant. Did the DTI conduct a
poll of lawyers? I have very real doubts that any sort of majority of common
lawyers could be found to assert that secondary legislation could overturn
primary legislation using a power under an old Act. Perhaps the ministry are
referring to European lawyers, but even in Europe (eg in Denmark and Germany)
doubts have been expressed about community law over-riding basic or fundamental
law, indeed as a matter of Danish constitutional law we may assert with some
confidence that the Eastern High Court (whose jurisdiction includes Copenhagen)
and the Supreme Court retain the right to strike down any legal instrument of
the European Community which "lies beyond the transfer of sovereignty according
to the Act of Accession," ie is incompatible with the Constitution of the
Kingdom of Denmark Act 1953, the ultimate legal instrument for the Kingdom of
Denmark (Hanne Norup Carlsen, Ingeborg Fangel, Nicolas Fischer & ors -v-
Prime Minister Poul Nyrup Rasmussen, Case No I 361/1997, 6th April 1998,
Supreme Court of Denmark, Hornslet, Hermann, Andreasen, Pedersen,
Sorensen,Melchior, Blok,Norgaard, Lorenzen, Dahl and Kristensen JJ.)(I was
present in court for the judgment and I am relying on an English language
transcript kindly made available by one of the attornies-at-law of record).
51. Should a common
lawyer be found to present the facile argument (with respect to those who take
the contrary view) that secondary legislation can overturn later primary
legislation then I most respectfully venture to suggest that he or she will
either be unfamiliar with constitutional law, too indolent to look it up or a
supporter of the UK's membership of the European Community so lacking in
integrity that he or she is unwilling to recognise a legal principle which is
politically inconvenient. In describing such an argument as 'facile' I should
not be thought of as criticising counsel in Factortame, for the simple reason
that no argument on the point was presented. The judges with great respect
ought to have stopped the case, but in fairness to them none could be described
as a constitutional lawyer and huge mistakes often go uncorrected - indeed the
failure to apply the settled doctrine that Parliament cannot bind its
successors was not the only constitutional mistake made. The equally disastrous
(with the utmost respect) ruling in Factortame (No 1) [1990] 2 AC 85 that a
Minister of the Crown could not be restrained by injunction from acting
unlawfully (which as Lord Templeman stated correctly with respect, at 395,
reversed the result of the English Civil War) was not reversed until four years
later, in M -v- Home Office [1994] 1 AC 377. It is unclear why Lord Templeman
was not invited to sit in the Factortame cases, given his constitutional
expertise. Since the subjugation of English common law and Parliament to
European domination could fairly be said to have been a principal German war
aim it could be said that in the Factortame cases the judges sought to reverse
the outcome not only of the Civil War but the Second World War as well.
52. It is perhaps
illustrative of the herd instinct that few lawyers could be found to argue for
an injunction against a Minister for the Crown between Factortame (No 1) and M.
I am pleased to say that I did seek such injunctions in immigration cases in
the Divisional Court arguing (I would suggest correctly) that the House of
Lords ruling was obiter (and therefore non-binding) because interim relief was
eventually granted against the Secretary of State. Undertakings were swiftly
offered (I was sufficiently associated with the point to be rung up by a most
distinguished professor of constitutional law who assumed that M was my case -
it wasn't). With respect to the DTI (it is not my practice to name civil
servants when making critical comment, the responsibility being the minister's)
I am not much taken with the argument that an unquantified majority of un-named
lawyers do not agree with me.
14. Venue and
Jurisdiction
53. DPP -v-
Hutchinson (supra) is authority for the proposition that a magistrates court
may consider the vires of secondary legislation. In that case the Divisional
Court with respect wrongly allowed an appeal by the DPP against the perfectly
proper decision, with respect, of HH Judge Lait and two lay justices sitting in
the Crown Court at Reading to set aside the conviction of two women, Jean
Hutchinson and Georgina Smith. Finding themselves unable to support the defence
policy of the government of the day these indefatigable ladies together with
several others camped outside the RAF aerodrome at Greenham Common, where they
protested against cruise missiles, to the interest of the press and the
annoyance of the ministry, who thereupon instituted a misconceived criminal
prosecution based on regulations purportedly made under s.14(1) of the Military
Lands Act 1892.
54. The problem was
that as its names implies RAF Greenham Common was on a common and the Military
Lands Act specifically protected the rights of commoners. The secondary
legislation did not, it was in conflict with the primary legislation and
therefore ultra vires. Since the regulations did not exist in law no
prosecution could be founded upon them, the ladies were entitled to be
acquitted and duly were, by the House of Lords. There is no suggestion in the
speeches of any of their Lordships that the ladies would first have to go to
the Divisional Court by way of an application for judicial review to quash the
regulations, which might have been refused as they lacked locus standi, not
being commoners. The decision has been criticised on the curious ground that as
they were not commoners they should have been punished, under an unlawful
instrument. Given that the bye-law had no legal existence how could they
possibly be convicted? Everyone is entitled to the benefit of the law, peace
protesters as well as commoners. The case is a classic example of the enormous
dangers for the Rule of Law of the European voidability concept, which had it
been applied in this high-profile case would have led to a monstrous injustice
and made the country look like a police state.
55. Every
magistrates court in England and Wales has jurisdiction to consider the
constitutional implications which would be raised by a prosecution for selling
in metric measures, and rightly so. I am aware that there are those in the law
who despise lay magistrates (after six centuries of service they are now under
threat of abolition) but I do not and I have every confidence that a bench of
English magistrates will comprehend that it is their duty to apply an Act of
Parliament and that a later Act of Parliament takes precedence over an earlier.
56. It will not be
necessary to plead not guilty, as the informations will not disclose an offence
known to the law and issue can be joined under the splendid old procedure of a
demurrer, which should be in writing (R -v- Cumberworth (1989) 89
Cr.App.R.187). The procedure was used on only a handful of occasions in the
20th century.
15. Judicial
Review
57. Mr. Malone of
the Metropolitan Borough of Wirral asks in his letter to those instructing me
on 18th July why they have not sought judicial review, to which the first
response might be why has the Metropolitan Borough of Wirral equally not sought
to clarify the law by way of judicial review? If any compelling argument could
be found to support the regulations (none has been drawn to my attention) the
Divisional Court would be able to grant declaratory relief. The second
response, having regard to the equality of arms principle, might be to ask
whether or not the council (or for that matter the DTI) are prepared to pay the
costs. The third response might be, 'when are you going to prosecute?' On my
instructions a variety of threats have been made to Imperial traders since 1st
January but there has been a marked reluctance on the part of trading standards
officers to take matters to court.
58. I have advised
separately, with different instructing solicitors (to whom this Opinion should
be shown as a courtesy), in a case involving the unlawful seizure of Imperial
scales. There is a consideration so far as bringing actions for trespass in the
ordinary courts is concerned arising out of the unconstitutional decision of
the House of Lords (with the utmost respect) in O'Reilly -v- Mackman [1983] 2
AC 237, where Lord Diplock used recent changes to Order 53 on procedure on
judicial review (themselves of questionable value) to justify restricting
access to the Queen's courts and funnelling all public law issues into the
Divisional Court. Had Dicey been alive he would doubtless have pointed out that
this was nothing less than an attempt to model the public law of England on the
French example, conspicuous by its failure throughout the 20th century to
control the French state, not least during the Vichy period (I suspect Dicey
would have been quick to spot the compatibility of the European legal model
with Fascism).
59. The decision
has been severely criticised, not least by the brilliant (with respect)
Professor Sir William Wade QC LLD FBA (see eg the 6th ed of his Administrative
Law, later editions being jointly edited, at 676 - 687, in particular the
reference to "the evils of rigid demarcation" at 683). Subsequent events have
proved the resilience of the British Constitution (it is after all the most
brilliant ever devised and inspired the American Constitution, itself a key to
America's success) and how difficult it is to Europeanise the Constitution by
stealth. This is partly because decisions such as Factortame are worthless as
authority unless the constitutional issues are fully argued and partly because
the case by case tradition of the common law soon exposes the flaws in
decisions such as O'Reilly -v- Mackman. The House of Lords commenced the
restoration of constitutional legitimacy within two years, confirming in
Wandsworth LBC -v- Winder [1985] AC 461 that public law issues could be raised
by way of defence in the County Court. There was then the excellent series of
decisions referred to above (paragraph 47), starting with Bakhtaur Singh, which
confirmed that statutory tribunals retained public law jurisdiction and the
landmark decision in Hutchinson, confirming the public law jurisdiction of
magistrates.
60. We do not of
course have an administrative court in England in the European sense
(notwithstanding the absurd renaming of the Crown Office List, which may alter
the stationery but not the jurisdiction), because as Dicey so eloquently
explained (op. cit. passim) the principles of English constitutional and
administrative law are part of the ordinary law of the land, the glorious
inheritance of the common people, to be enforced against the executive in every
court in the land, high or low, lay or professional, in London or the
provinces, in every case in which they are relevant, whether the executive like
it or not. They do not in fact like it, any more than they like Habeas Corpus
(it was in fact suggested by the executive after Factortame that Habeas Corpus
no longer lay against a government minister - see R -v- Secretary of State for
the Home Department ex p Muboyayi [1992] 1 QB 244) or Trial by Jury, but there
it is.
61. The vestigial
traces of O'Reilly -v- Mackman are sufficient to say that judicial review might
be preferable to bringing tort proceedings in the ordinary courts, but the
County Court would have jurisdiction if a local authority pleaded the ultra
vires regulations by way of defence. There is no obligation on a litigant in
England to give recognition to an unlawful act by the executive and the 1985
Act may be pleaded as it was placed on the statute book. Equally of course
there is no obligation on a local authority to plead a plainly defective set of
regulations.
16. The Price
Marking Orders
62. I may deal deal
shortly with these as the draughtsman in each case was plainly labouring under
the same delusion as the draughtsman of the 1994 Order and Regulations, making
the same asinine assumption (with respect) that an entrenching mechanism is
known to the law of England whereby an earlier Act of Parliament takes
precedence over a later. The 1991, 1994, 1995 and 1999 Orders are all
purportedly made under s.4 of the Prices Act 1974, which is of course governed
by the Weights and Measures Act 1985. There is no reason not to have unit
pricing, but plainly a scheme under secondary legislation relying on a pre-1985
Act of Parliament is unlawful in so far as it fails to provide for unit pricing
in Imperial measures. That is because the scheme as drafted attempts to get
around the sanction of Imperial trading by primary legislation by the sidewind
of outlawing Imperial pricing. It is lawful to trade in Imperial therefore it
is lawful to price in Imperial. In so far as they assert the contrary (parts of
the Orders may be severable) these pretended Orders are all ultra vires, null
and void and of no legal effect whatsoever.
17. The Weighing
Equipment Regulations 1988
63. It is perhaps a
measure of the desperation of some trading standards officers that these
regulations should be prayed in aid at all. Correctly they refer expressly to
Imperial weights and measures (see eg Regulations 2(2) and 14). These
regulations are lawful and traders should comply with them, so that any
Imperial non-automatic weighing machine first passed as fit for use for trade
after 1st November 1988 should be graduated in multiples of 1/8,1/4,1/2,1,2,4
or 8 ounces and 1/4 or 1/2 pound and give a weighing result which complies with
the principle of simple juxtaposition (reg.14(1)(b)) unless it is a
semi-self-indicating machine with a mechanical weight indicating device which
has a range of self-indication of 2lb, etc (reg.14(2)). (No doubt the minister
when confronted with this regulation said "seems self-evident enough to me," or
words to like effect).
64. These are dual
system regulations. They have no bearing on the issue of whether it is the
primary or the secondary legislation which is invalid, and merely regulate
Imperial trading, which is a different thing from outlawing it. Nobody says
Imperial traders should not use clear and accurate scales or sell short.
18. Imperial
Testing
65. The suggestion
(on my instructions) from some trading standards officers that they can no
longer test Imperial scales because they have thrown away their equipment
amounts to no more than an insolent defiance of Parliament's authority. Trading
standards departments are under a duty imposed by law to enforce the law on
weights and measures and unless and until Parliament says otherwise that means
Imperial as well as metric. Equipment thrown away should be replaced and
councillors surcharged for the additional burden on ratepayers where they have
approved the disposal of equipment still in working order and fit for its
purpose.
19. Compensation
66. I remain
inclined to the view that traders who have been misled as to the law should be
compensated, but this will require a compensation scheme. Ordinarily there is
no remedy for a misrepresentation as to the law, absent bad faith, on the basis
that everyone (even a minister) is presumed to know the law. The recourse here
is to Parliament rather than the courts and traders should consult with their
Members of Parliament or with Peers who are prepared to take up their case.
Entirely different considerations arise where traders have been assaulted or
their property seized, in which event ordinary actions will lie for assault,
battery and trespass to goods, with the jury being invited to award massive
aggravated and exemplary damages. Given the constitutional implications of such
actions, the blow struck at responsible government and the defiance of the
elected Parliament, a jury would be appropriate in all cases, unless quantum
can be agreed.
67. I assume in any
event that Parliament is on the alert for legislation by stealth, eg by a
seemingly innocuous amendment buried deep in a Schedule of Repeals - the day
when ministers might be presumed not treat Parliament with contempt has long
gone, indeed sadly we live in an era where treachery, deceit and bad faith
increasingly appear to be the stock-in-trade of ministers and officials.
20. The vires of
the Directives
68. It has been
suggested that directives 80/181/EEC and 89/617/EEC might not meet the
community law tests of subsidiarity and proportionality. I do not agree. The
tests, which now appear in Protocol 30 to the revised Treaty on European Union,
are heavily qualified and in particular made subject in paragraph (2) of the
Protocol to the over-riding Treaty objective of ever-closer union. The
limitation in Article 6(3) of the TEU, concerning respect for the national
identities of member states, has in practice proved worthless. The same might
be said of the subsidiarity test, which is probably excluded in this case by
either paragraph (2) (acquis communautaire) or (3) exclusive competence. I am
not aware that it has ever been used to strike down a directive.
69. The prospect of
the ECJ striking down the key directive, 80/181, on proportionality grounds, is
negligible. The DTI might agree to an ECJ reference but only in order to stall
for time, which in my view is not a proper use of the reference procedure, with
which I am very familiar (I have used it myself). The danger to avoid here is
interpreting the treaty and directive in the way that an English lawyer might,
overlooking the political and federalising dynamic of the Luxembourg Court.
70. If I might be
forgiven an anecdotal reference, I well remember one English silk telling me my
community law point in Webb -v- EMO Air Cargo Ltd (C-32/93) [1993] 1 CMLR 259
[1993] ICR 175 [1994] 2 CMLR 729 [1994] ICR 770 (ECJ, House of Lords) was
unarguable. The mistake he made, in company with respect with the Industrial
Tribunal (where I was sole counsel), the Employment Appeal Tribunal (where I
was junior counsel) and the Court of Appeal (where I settled the grounds of
appeal and advised an extension of Legal Aid) was to apply a textual
construction where a purposive construction was appropriate. The construction
favoured by the ECJ was almost identical to that urged by myself on the
Industrial Tribunal, some years earlier (my final involvement with the case,
appearing before the Industrial Tribunal on quantum, was over 10 years after I
first advised). Having regard to the purpose of the Treaties establishing the
European Community and the Treaty on European Union I advise that the
subsidiarity test has no application to either directive, which are part of the
acquis communautaire and protected by paragraph 2 of Protocol 30, or in the
alternative paragraph 3 (exclusive competence), or in the further alternative
the substantive test of subsidiarity is met having regard to the restrictions
on intra-community trade flowing from having two systems of measurement in use
in the single market. The proportionality test is plainly met for that reason
also and I see nothing disproportionate in the enforcement provisions.
71. In my opinion
neither community law point is properly arguable and I would not wish to see
the time of the ECJ taken up with them. I should not be thought of as saying
that the purposive approach as applied by the ECJ (which tends to build on the
texts rather than interpret them) is laudable or desirable, or appropriate in a
democratic context. It is one thing for a treaty tribunal in an undemocratic
supra-national organisation interpreting texts which are largely the product of
officials, where the parliament plays a consultative role only, to add words in
and effectively re-write the text under the guise of interpretation, but quite
another for a court in a democracy, particularly one with a supreme parliament,
to depart from the clear meaning of an instrument or give it a strained
construction in order to arrive at what the court considers to be a politically
desirable result. Any objective observer of the EU would have to be concerned
at the absence of consent and the tensions generated by federalising from the
centre (the court and the bureaucracy) without a clear democratic mandate from
the member states and their electorates, indeed it is possible to predict that
unless the consent gap is closed the organisation will collapse, or at the very
least spin off non-core member states (such as the UK, the Kingdoms of Sweden
and Denmark and the Finnish Republic).
21. Sanctions
Against the United Kingdom
72. I am asked to
comment on observations by officials of the European Community, who are said to
have threatened non-forcible sanctions against the United Kingdom, in the wake
of the perfectly proper decision of the UK's leading chain of supermarkets to
offer its customers the choice of Imperial or metric (as a matter of law there
is no reason why supermarkets could not go Imperial only, for pre-packaged
items, loose goods and petrol). I will not comment on what was said on the
radio (although I am grateful to the BBC for supplying me with a tape) without
an agreed transcript, having regard to the implications in international law of
making a threat of non-forcible measures against a Sovereign State. As a matter
of community law there is an obligation on the United Kingdom government to
force compulsory metrication on her civilian population, but I cannot think
that the absence of democratic consent is without consequence in international
law.
73. As I advised in
December (paragraph 31) there is a rule of public international law, reflected
in Article 46(1) of the Vienna Convention on the Law of Treaties (UKTS No
58(1980) Cmnd.7964) whereby a state party to a treaty may be taken to know the
internal rules of fundamental importance of other state parties. In my opinion,
necessarily expressed tentatively because we are moving through uncharted
waters, a supranational organisation may not take non-forcible measures against
a state party where an internal rule of fundamental importance prevents that
party from complying with a treaty obligation. Put shortly the United Kingdom
might have a defence in international law, in which event sanctions such as
fines (provided for in principle under community law) would be wholly
inappropriate. I have regard not only to the Vienna Convention on the Law of
Treaties, but also to the Charter of the United Nations, which refers expressly
to the rights of nations in the Preamble and to the over-riding principle of
self-determination in Article 1(2). I further have regard to the 1970
Declaration on Principles of International Law Concerning Friendly Relations
and Co-Operation Among States (Annex to General Assembly Resolution 2625
(XXV)). The Declaration, assented to by each of the state parties to the Treaty
of Rome and the TEU, refers expressly to the principle of non-intervention in
internal affairs and holds that such intervention "violates the letter and
spirit of the Charter (and)... leads to the creation of situations which
threaten international peace and security". It should be borne in mind that
unless the 1985 Act is repealed there would be no mechanism for voluntary
payment of any fine levied by the ECJ, because of internal rules governing the
use of the Consolidated Fund of the United Kingdom. I assume that the European
Commission are aware of that and accept that collection of any fine would
require seizure of UK non-state assets under community jurisdiction, a
procedure which whilst it might be lawful under community law (on a purposive
construction) seems to me to be questionable under general international law to
say the very least.
74. A threat by the
European Commission to enforce directive 80/181/EEC would if made (I shall
assume in favour of the commission in the absence of a transcript that no such
threat was made or intended in the public comments in this jurisdiction of
officials of the Commission) raise potentially fundamental and far-reaching
points of public international law arising out of the interface between
community and general international law. It should be remembered that because
of the non-sovereign (and therefore inferior) status of the European Community
in international law it would not be relying on internal rules (such as the
rule that no Parliament may bind its successor) but treaty law (including the
directive which derives its effect from Article 249) and the European Community
cannot invoke an international treaty to interfere in the internal affairs of
the United Kingdom in violation of general international law. Put shortly
Brussels cannot have its gateaux and eat it - if it wishes to rely on an
international instrument it must also have regard to the international status
of the United Kingdom as a Sovereign State and respect the rules of
international law, which protects sovereigns from interference in their
internal affairs. Having regard to the fundamental importance of the principle
that Parliament cannot bind its successors and further having regard to the
sovereign will of the British people as expressed in primary legislation of
their elected Parliament I advise that any threat to invoke non-forcible
measures or sanctions against the United Kingdom in respect of Imperial trading
whilst the Weights and Measures Act 1985 is on the statute book would amount to
an unlawful interference in the internal affairs of the United Kingdom contrary
to the principles and purposes of the United Nations and the 1970 Declaration
of Principles on International Law.
75. So far as
remedies are concerned recourse to the ECJ plainly would not be effective, nor
as a treaty tribunal could it fairly decide as between the UK and the European
Commission on an issue as sensitive as this, nor following Factortame could the
UK reasonably be expected with respect to have any confidence in the
impartiality of the court or its willingness to respect the UK's sovereign
status. Recourse to the International Court of Justice in the Hague is
generally taken to be precluded by Article 292, although I entertain
reservations about the relationship of this article to the UN Charter,
including Article 95 and the Statute of the International Court of Justice, but
that would not exclude conciliation by the Conciliation Commission (see the
Annex to the Vienna Convention), which would require the consent of the
opposing party and the Commission. Having regard to the possibility of a threat
to international peace and security intervention by the UN Security Council
would be an appropriate response to enforcement action against the United
Kingdom, a Permanent Member of the Council, by the European Commission, but
effective action might be hampered through use of the French veto. A further
alternative, if the Commission did not back down, would be to treat enforcement
action directed at forcing Parliament to change its mind as a casus belli
justifying an armed response, either limited (eg by way of SSN blockade of EC
ports) or general hostilities. Of course there are timid souls, like the
minister with respect, who would enforce metric weights and measures on their
own people rather than go that far just as there were timid souls in this
country who were not prepared to go to the aid of the Belgian people in 1914 or
the Polish people in 1939, but timidity is not a characteristic usually
associated with the British people, as opposed to their governments, and the
lesson of history is that timid governments usually collapse quickly in a
crisis (as in May 1940), to be replaced by a British Government worthy of the
name. I would respectfully advise the European Commission against trying to
force the British people to abandon our dearly loved weights and measures, so
much a part of our national history and character, in favour of the generally
detested metric system, all the more detested now that it has become a powerful
symbol of European domination through the clumsy attempt to ram it through
against the wishes of Parliament.
22. Compliance
of the Rome Treaty with the Jus Cogens
76. Considerations
arising from general public international law give rise to serious concern
about the international compliance of European Community law, in two ways.
Firstly the rule of community law (which I have referred to as the Factortame
doctrine, although there are earlier cases) which requires the fundamental or
basic laws of Member States to give way amounts to a serious interference in
the internal affairs of the Member States in violation of the UN Charter and
the 1970 Declaration of Principles, having regard also to the presumptive norm
against subjugation to alien domination and exploitation (see Article 1 of the
Declaration on the Granting of Independence to Colonial Countries and Peoples
of 1960 (UN General Assembly Resolution 1514 (XV)). Whilst it may be that
direct effect instruments are compliant where regulations and directives do not
purport to over-ride the basic and fundamental laws of the democratic societies
whose democracy the basic laws are there to uphold, once that threshold is
crossed it seems to me that the interference in the internal affairs of Member
States is so violent as to amount to a denial of self-determination. No
constitutional lawyer reading the judgment of the Danish Supreme Court in
Carlsen & ors could fail to sense the unease and disquiet of the Court at
the claims being made for community law over the Danish Constitution, nor could
they fail to be moved by the evident adherence of the distinguished members of
the Court to Her Danish Majesty or the Kingdom of Denmark Constitution Act,
itself passed in the wake of much loss of young Danish life in the Resistance
Movement, former members of which I had the privilege of meeting when I went to
Denmark to hear the judgment. Secondly the metrication directive interferes
with local customs established since time immemorial and the British way of
life to such a degree as to amount to an unlawful denial of self-determination
(that is to say these are matters for the UK to decide, not Europe). This works
both ways : no-one in the UK would suggest that we could or should impose
Imperial weights and measures on European states. People in areas under British
military occupation (eg the British Zone in what became West Germany and the
British Sector in West Berlin) were not forced to adopt the Imperial system,
with which they would have been no more comfortable than we are with SI/metric.
77. The inalienable
right of a nation and people to self-determination is a peremptory norm of
general international law and part of the jus cogens, its importance being
reflected in the Preamble to the UN Charter, in Articles 21(1) and (3) of the
Universal Declaration of Human Rights (with which the Factortame doctrine is
plainly inconsistent, seeking as it does to assert a supranational will over
the elected legislature of this realm), Article 1(1) of the International
Covenant on Human Rights and Article 1(1) of the International Covenant on
Civil and Political Rights. I respectfully adopt the following passage from the
judgment of the International Criminal Tribunal for the Former Yugoslavia in
Prosecutor -v- Furundzija (unreported, Case No IT-95-17/1-T 10, 10th December
1998), expressly approved by the House of Lords in R -v- Bow Street
Metropolitan Stipendiary Magistrate & ors ex p General Augusto Pinochet
Ugarte [2000] 1 AC 147, per Lord Browne-Wilkinson at 198 : Because of the
importance of the values it protects ... has evolved into a peremptory norm or
jus cogens, that is, a norm that enjoys a higher rank in the international
hierarchy than treaty law and even 'ordinary' customary rules. The most
conspicuous consequence of this higher rank is that the principle at issue
cannot be derogated from by states through international treaties or local or
special customs or even general customary rules not endowed with the same
normative force (emphasis added).
78. The Pinochet
and ICT judgments reflect Article 53 of the Vienna Convention on the Law of
Treaties, which confirms that treaty provisions in violation of the jus cogens
are void. Article 71(1)(a) sensibly appears to accept the possibility that void
provisions may be severed, which must be right, saving the valid part of the
treaty. Article 2(1)(a) is broad enough on a purposive construction to embrace
directives as separate international agreements (the word 'treaty' is not a
term of art and simply means an international agreement), so that a directive
may be void as violating the peremptory norm of self-determination without
necessarily infecting the Treaties establishing the European Union and
Community.
79. In the
premises I formally advise that re-numbered Article 249 of the Consolidated
Treaty Establishing the European Community is void in so far it purports to
over-ride the fundamental or basic laws of the Member States of the European
Community, in the case of the United Kingdom of Great Britain and Northern
Ireland primary legislation enacted with the over-arching constitutional
authority of Our Liege Sovereign Lady the Queen in Parliament assembled, on the
ground of violation of the peremptory norm of general international law in
favour of the self-determination of nations and peoples. No regulation or
directive, whether having direct effect or not, may over-ride an Act of
Parliament, or conflict with the constitutional or basic law of any Member
State, each of which including the Grand Duchy of Luxembourg is a Sovereign
State under international law and may claim the inalienable right of
self-determination.
80. I further
advise that Directive 80/181/EEC as amended by Directive 89/617/EEC is void as
against the United Kingdom of Great Britain and Northern Ireland (and most
probably the Republic of Ireland) as being in conflict with the said peremptory
norm of general public international law in so far as it purports to impose the
International System of Measurement and throw over the Imperial system of
weights and measures by law and custom established. This is a further ground
for saying that the Units of Measurement Regulations are ultra vires, null and
void. The Amendment Order clearly assumes that the said Directives are valid
and have binding effect (Explanatory Note, paragraph 1) and this is a further
ground on which to strike down the Order in Council.
23. Conclusion
81. I am aware that
there will be those who think this Opinion insufficiently communautaire or
perhaps not supine enough for political comfort, but I cannot help that. (Some
may also suggest that I have used too much Latin, to which I say mea culpa).
The obligation on counsel is to advise on the law as he or she conceives it to
be, having taken the trouble of looking it up. I take the law as I find it, in
the books. It may be objected that I have relied on old authorities, but it is
a great mistake to hold that a legal principle which has stood the test of time
and is supported by centuries of authority, such as the principle that
Parliament may not bind its successors, is less valid than one which was
invented last week. It is an even greater mistake to throw over the principles
of the Constitution to arrive at a result that is politically convenient in the
short term. That was done in the 17th century, when the judges failed to uphold
the principles of liberty and the Constitution against the King, with the
almost inevitable consequence that the country was plunged into the Civil War.
82. It is I am sure
an uncomfortable legal fact for those who support Britain's membership of the
European Community that the European Communities Act 1972 has no greater status
than the Dangerous Dogs Act 1991, but that is the law. Thankfully, the European
Communities Act is no more entrenched than the Dangerous Dogs Act and no good
can come of pretending otherwise. The answer to the minister's apparent dilemna
is to put forward new primary legislation. If the reason he is unwilling to do
that is because the Chief Whip has taken fright and thinks it will not go down
well with the back bench, or the government's business managers in the Upper
House fear a bruising confrontation, or focus groups suggest it will cost the
government ten points in the polls, there is even less reason for the courts to
bail the executive out by upholding plainly invalid secondary legislation.
83. It is a very
strong thing for a court in this country deliberately to go against an Act of
Parliament - even in the 17th century the courts did not go that far. It is
impossible to predict the damage that would be done to the fabric of the
Constitution, but on any view it would be very great. In the 17th century the
damage eventually was repaired but only after civil war, regicide,
dictatorship, great loss of human life and damage to property. It is doubtful
if the national economy recovered much before the end of the century. However
such a decision was presented the reality would be that the courts had allied
themselves with the executive against the legislature and both the judiciary
and the executive would be open to the accusation that they were acting as
puppets of the European Union, inviting odious comparison with Vichy.
84. I do not say
that a judge is not entitled to support membership of the European Community. A
judge is entitled to his or her own view, however eccentric it might be.
Economic or political literacy is not a requirement for judicial office
(although knowledge of the law is helpful) and a judge is as entitled to
support the single currency as he or she is entitled to believe in Esperanto.
What a judge must never do however is to allow his or her political opinion to
influence his or her judgement - in the case at hand because upholding the
Constitution might cause difficulties for ministers in Brussels. As Chief
Justice Tindal said in Warburton -v- Loveland (1832) 2 D & Cl 480 at 489 :
Where the language of an Act is clear and explicit, we must give effect to it,
whatever may be the consequences, for in that case the words of the statute
speak the intention of the legislature.
85. I can only
advise of course and I cannot warrant the decision of any court. Darnel's Case
and Factortame with great respect are proof enough that the courts may fall
into error, even disastrous error. My advice however is clear and I adhere to
the opinion I expressed in December : the Units of Measurement Regulations and
the Amendment Order are ultra vires, null and void and the Weights and Measures
Act 1985 remains in force in full measure, unamended, guaranteeing for so long
as it remains on the statute book the liberties of Englishmen and women to deal
in pounds and ounces, gallons and pints and feet and inches as under an
Almighty and Merciful Providence they have always done. The Law of Nations, so
far from oppressing the British people, who fought so hard and sacrificed so
much in the last century for the rights of nations and to whom so many peoples,
including European peoples, owe their freedom, guarantees their inalienable
right to self-determination. Precisely because a peremptory norm of general
international law is inalienable the priceless right of national freedom was
not bartered away by the weak and feeble ministry which signed the Treaty of
Accession to the Treaty of Rome. There it is. I advise
accordingly.
Michael Shrimpton,
Esq., of Gray's Inn, Barrister.
Dated this 7th day
of August in the Year of Our Lord 2000