SUNDOWN OVER SUNDERLAND
The Thoburn trial and its consequences.

(Article first published in The Salisbury review, Summer 2001)

Ironically, it is those responsible for imposing compulsory metrication who must now, despite their apparent victory in the Magistrates Court at Sunderland on 9th April, execute a volte face. For hitherto they have all - from Brussels to Strasbourg to Westminster - maintained the pretence that the 1994 Metric regulations making use of imperial weights and measures a criminal offence were not inflicted upon us by the European Union but merely represented the culmination of a voluntary process that Britain embarked upon some 35 years ago. But Judge Morgan's judgement (running to 50 pages of longhand which took an hour and a half to read out because neither a stenographer nor even a typist had been available for production of copies) made it clear that the only reason why he was obliged to convict Steven Thoburn was because even such SECONDARY legislation introduced by Statutory Instruments in compliance with EC Directives takes precedence over - and accordingly amends - such PRIMARY legislation as the great Weights and Measures Act of 1985.

Furthermore, the judge made no attempt to justify the Regulations, nor felt able to take account of their unpopularity, which he recognised from correspondence sent to the Court by the general pubic as well as from the media. He simply declared that he was bound to enforce European law, since effectively the sovereignty of Parliament was abolished by the European Communities Act of 1972. He upheld the prosecution's argument that the United Kingdom no longer exists as a legal entity. So, at long last, any illusion that compulsory metrication is anything more than repression for its own sake - cultural cleansing - is finally shattered. The fact that no proposal to prohibit trading in customary measures was ever mentioned in any political party's manifesto or in any Queen's Speech is irrelevant. Freedom of choice between the metric and imperial systems, which we enjoyed for almost a century from 1897 - when alternative use of metric units wherever appropriate was made legal in Britain - until compulsory metrication of pre-packaged goods was imposed in 1995, and which is still enjoyed in the USA, is anathema.

The judgement therefore exposes another absurdity: the constant complaint from the authorities that opposition to compulsory metrication is largely inspired by anti-EU sentiment rather than by the merits of the case - for the EU is itself the sole source and the raison d'etre of the policy. The Judge emphasised that the only way to restore legitimacy to customary measures is to repeal the 1972 Act, which Parliament is free to do at any time. Then so be it. Consequently the British Weights and Measures Association is also having to turn face-about; because, having always insisted that our campaign is non-political and must succeed strictly on the merits of the case, we are paradoxically and most reluctantly compelled by this verdict to adopt a directly anti-EU policy.

Of course, the Judge and prosecuting counsel both assumed that, as this was a test case, it will go to appeal - to the Divisional Court in London - which will probably require a 5 day hearing (by 'stated case') in the autumn. Thence it could go t the House of Lords. It was because of the presumption of an appeal that the Judge made no award of costs - indeed the prosecution made no application for costs - and Mr Thoburn was granted a conditional discharge without penalty. For this fundamental constitutional issue, that has been rumbling beneath the surface for the last 28 years, has never been resolved in a court of law. As Michael Shrimpton, defence counsel, declared in his opening address: 'This is the trial they said could never happen'. He also remarked, in a closing tribute to the Judge, that if only his explanation of the constitutional position had been given to the nation in 1972 by Heath or Rippon, both of whom assured us that the European Communities Act entailed no loss of essential sovereignty, it would never have been signed!

If the metric regulations are valid, then no useful purpose is served by holding a general election in Britain this year or ever again. Last year the scales were seized from Steve Thoburn's market stall: now they must fall from the nation's eyes. If the regulations are valid then the vital principles of our constitution - that no Parliament can bind its successor, that a later Act overrides an earlier, and that, above all, the powers of the Queen in Parliament are unfettered - are all extinguished. This was not only a test case for defiance of compulsory metrication, but also a test case to determine the primacy of UK or EU law.

Yet media coverage of the five day trial (15 - 17 Jan and 1 -2 March) concentrated on personalities and never rose above the level of metric versus imperial - the superficial merits of the case - with scant regard to its epoch-making implications. Steve and his glamorous wife and his campaign manager Neil Herron became local heroes, and the Washington Post captured the mood by dubbing the affair 'Bananagate'. Which were worse, the Labour City Councillors, none of whom was willing publicly EITHER to condemn OR to applaud the prosecution that had been brought in their name, or Tory politicians who loudly deplored the case without challenging the legality of the regulations?

There might have been some excuse for the short-sightedness or indifference of almost all the media and the political classes if they had been obliged to infer or construe the constitutional issue from the presentation of the prosecution's case. But no such effort was required; for it was the prosecuting counsel, Eleanor Sharpston QC (one of the quirks of this case is the pairing of Shrimpton and Sharpston), who argued unequivocally and exhaustively that it was BECAUSE British law is subservient to EU law, BECAUSE a legislative and judicial "revolution" occurred in 1972, when Parliament "wholly, expressly and voluntarily" sacrificed national sovereignty, that THEREFORE the regulations obviously take precedence over the Act of Parliament. The impotence of Parliament and the demise of our constitution were not the IMPLICATION of her case but the PRESUMPTION for it. It is indeed impossible to exaggerate the constitutional issue, since it was Ms Sharpston herself who astounded us all (the few who were paying attention) by expressing it in such absolute terms.

Yes, it inspire intense pride in our system of justice and government that our country's future is decided, in the first instance, in a humble Magistrates' Court and as the result of a trifling alleged offence - and yes it is sublime that, thanks to the heroism of the 'metric martyrs' and the six-year campaign by the British Weights and Measures Association and the brilliance of counsel, history is being made here - but it is absurd that the nation is not in uproar, that questions are not being asked in the House, that there are no crowds demonstrating outside the Court. An independent, nationwide public opinion poll found that 91% answered "NO" to the question: 'Should Steven Thoburn be prosecuted?' - but what are the people or their MPs (or the Civil Liberties lobby or those government mouthpieces laughingly called 'Consumer Councils') doing about it and how to the media reflect that overwhelming popular view?

Mr Shrimpton argued, incidentally, that compulsory metrication appeared to violate Articles in the European Convention on Human Rights guaranteeing freedom of expression and freedom of trade. He might have added, pointing to the huge royal crest above the magistrate's chair, that if these regulations are valid, then the mottoes should be altered: 'Honi soit qui mal y pense' to "GLOIRE soit mal y pense" and 'Dieu et mon droit' to "Dieu et mon TORT".

While preparing for the appeal, we shall also have to launch a public appeal for funds. Total defence costs from the original summons last September will have amounted to about £30,000, of which BWMA has raised over £20,000, but we are now confronted with a huge financial challenge. The vast bulk of contributions to date have come from hundreds of private individuals, but we shall need a major backer - a national newspaper, or corporate sponsor or philanthropist. Thoburn and Herron have also set up a properly constituted 'Metric Martyrs' trust fund.

The prosecution has no financial worries, of course, being funded by Sunderland Council Tax payers - since evidently this is considered better use of revenue than caring for the homeless or repairing roads - which is why a QC was retained together with her junior, in contrast to the defence's Mr Shrimpton, who modestly demures: "I am not a silk, just plain polyester". Meanwhile, an added danger is that, pending our appeal, other local authorities that have been awaiting the outcome of this test case will immediately proceed against numerous rebel retailers in their areas whose confidence and resolve may suddenly weaken and who may not be able to afford the cost or the strain of a defence. They are likely to be encouraged in this action by renewed pressure from the DTI as well as from local government and trading standards organisations. Our hope must be that in typically British spirit we will be stirred and the people will rise up against this tyranny.

It is a consolation that the official argument cannot now change - it can hardly be varied or augmented at an appeal - whereas we can meanwhile assemble an ever-growing stockpile of fresh ammunition against the regulations. And public revulsion is mounting against the alien concepts of European law, exemplified by compulsory metrication. For British law (English or Scots) is fundamentally PROSCRIPTIVE: it states what you must NOT do - walk on the grass, commit murder or whatever - on the presumption that we are free to do anything that is not expressly prohibited, in the same way that we are presumed innocent until proved guilty. But the metric regulations, like so much continental law, are PRESCRIPTIVE, specifying the authorised units of measurement; on the presumption that use of any not expressly permitted is a criminal offence. This creates numerous anomalies, owing to the inadvertent omission of some specialist trade or vernacular units from the relevant schedule, or confusion between the array of conventional 'metric' units and those conforming to Le Systeme International which are the only ones strictly approved.

Also mounting is the public revulsion against the series of deceptions used throughout the process of compulsory metrication. This is well illustrated by the correspondence from Tony Blair himself. Writing from the "Office of the Leader of the Opposition" in November 1995 (and on many other occasions), he said:' Labour is pressing the Government to ensure that for the forseeable future consumers are able to buy pints of milk, drought beer and cider.' That was deceitful, because neither then nor in the future could a UK government prevent the EC from issuing a Directive under qualified majority voting which abolished the pint completely. He went on: ' We are also determined to ensure that shopkeepers can continue to use pounds and ounces to sell goods such as loose fresh fruit and vegetables, meat. Poultry, cheese and fish.' But he meant precisely the opposite, for the next sentence read: ' No change can be made this century.' This CENTURY? So what he really meant was: 'We are also determined to ensure that only five years from now it will be a criminal offence to use pounds and ounces to sell goods.'

Now, as Prime Minister, Blair continues with his deceptions, writing personally in 29th January to Neil Herron from No 10, opening his final paragraph: 'Of course, the weight and unit price may also be indicated in pounds and ounces.' Ie the equivalent in imperial measures alongside the primary metric marking - after 31 December 2009. So what he really meant was: 'Of course, in less than nine years it will be a criminal offence even to use pounds and ounces as supplementary indications.' And he had the gall to conclude: 'Similarly, if your customers feel more comfortable specifying how much they want to buy in pounds and ounces they can continue to do so'. Is that not a gratuitous impertinence? By what right does he condescendingly confer permission for customers to do something for which no government has any right either to grant or to withhold permission? The regulations relate to SELLING and have nothing to do with buying: I can order a ton of horse feathers from Harrods or ask my newsagent for a nine-feet tall garden gnome if I like it, and whether or not either cares to oblige is entirely their decision. It is a fast growing tendency of government to presume to define our 'rights' and to presume thereby to earn our gratitude; whereas in reality it is a) begging the question as to who gave it the right in the first place to decide what our rights are, and b) implying that by granting us certain rights now it will have the right to withdraw any of them in the future, and c) also implying that anything not defined as an express right is prohibited.

The concept of 'supplementary indications' perfectly illustrates this totalitarian mindset, for they consist of no more than provision of additional information, for which no permission could ever have been required and which accordingly can never be banned. Since the only requirement is for metric marking, it is of no concern to any authority whether or not a supplier chooses to display also the imperial equivalent. In the absence of any suggestion of fraud or infringement of consumer protection legislation, permission to show additional information for the customer's benefit can neither be granted nor withheld. All this regulatory machinery concerned with the definition and control of 'supplementary indications' is a gigantic hoax by the DTI and the EC, and their proposed abolition (during the parliament after next!) is a desperate recognition that the whole project of a metric monopoly is doomed.

It is intolerable that the criminal offence is purely the use itself of imperial units, despite the vast majority of the population's preference for them and in the absence of any criminal intent or effect. It is intolerable, too, that the EU recognises eleven different languages yet cannot tolerate two codes of weights and measures; and that Britain, having yet to decide on the paramount issue governing a single European market - whether or not to sacrifice the pound sterling for the euro - should insist meanwhile on enforcing a far lesser priority by sacrificing imperial measures for metric. It is intolerable, finally, that the whole object of compulsory metrication is deliberately to damage Britain's interests by undermining the Anglo-American cultural and commercial bond that was forged centuries ago by a common system of customary weights and measures, which the European Commission regards as giving us 'an unfair competitive advantage in transatlantic trade'.

The only reason Steve Thoburn was prosecuted is because of the EU's deep loathing and envy of this UK-US solidarity, that sets us apart from our European 'partners'. As there's nothing they can do about our sharing a common language, they are all the more determined to deprive us of our common 'inch-pound-pint' heritage.

Our nationhood, culture, freedom, could all hinge on the ultimate outcome of this case.