Prosecuting Counsel, acting on
behalf of Sunderland City Council, argued that, in passing the European
Communities Act 1972 (ECA 1972), Britain had en-trenched EC law within the UK
legal system and given it primacy over UK legislation. Thus, statutory
in-struments passed under ECA 1972, requiring metric, took precedence over the
Weights and Measures Act 1985 allowing lb/oz, even though the Weights and
Measures Act 1985 (W&M 1985) was more recent. The High Court rejected this
argument, saying that EC law could not take effect without UK statutes. Lord
Justice Laws said in his judgment:
"The British
Parliament...being sovereign, cannot abandon its sovereignty. Accordingly,
there are no circumstances in which... [EC law can be elevated] to a status
within...English domestic law to which it could not aspire by any route of
English law itself".
The High Court also rejected
Prosecuting Counsel's argument that W&M 1985 did not allow for the use of
imperial units. For instance, Prosecuting Counsel said that Section 1 of
W&M 1985 was only a defining section and did not confer the right to use
the pound and yard. It was also argued that Section 1 referred to the pound and
yard only as "supplementary indications" (ie not authorised for use in trade).
These notions were dismissed by the High Court which ruled that W&M 1985,
"…confirms the continuing
legality of the use of the yard and the pound alongside that of the metre and
kilogram, without predominance of either system".
The High Court therefore
recognised two key points: Britain's membership of the EC did not lift ECA 1972
above later Acts, and that W&M 1985 provided for the use of lb/oz. The
combination of these two points should have meant that the Appeal by Steven
Thoburn and other traders was successful.
Why then were the convictions
upheld? They were upheld because Lord Justice Laws created a "hierarchy of
Acts", whereby ECA 1972 was "constitutional" and W&M 1985 "ordinary". He
said that ECA 1972 therefore took precedence over W&M 1985, even though
W&M 1985 was more recent. Lord Justice Laws said that the authority for a
hierarchy of Acts lay in Britain's own common law:
"We should recognise a
hierarchy of Acts of Parliament: as it were "ordinary" statutes and
"constitutional" statutes … Ordinary statutes may be impliedly repealed.
Constitutional statutes may not … I think the test could only be met by
express words in the later statute … A constitutional statute can only be
repealed … by unambiguous words on the face of the later statute".
In other words, Lord Justice
Laws said that ECA 1972 could not be repealed by implication (that is, by ECA
1972 requiring metric and the W&M 1985 allowing lb/oz). For W&M 1985 to
repeal any part of ECA 1972, he said, it must refer to ECA 1972 expressly in
its text. He declared imperial units illegal because, although accepting the
intention of W&M 1985 to legalise them, it did not refer to ECA 1972 by
name.
Uncertainty in the legality of
the metric regulations continues because none of the authorities cited by Lord
Justice Laws for a "hierarchy of Acts" was ever discussed in Court,
since they were not among the arguments presented by Prosecuting Counsel.
Consequently, traders were deprived of making representations on the very point
on which the case turned. Had the Defence Counsel been able to make submissions
on these authorities, he could have pointed out that none of them dealt with a
conflict between earlier and later statutes. Indeed, in one of them (Withim
1998), the presiding judge was none other than Lord Justice Laws himself, who
said that there was "no hierarchy of rights in English Law".
By ruling in the way that he
did, Lord Justice Laws acted unconstitutionally, since the effect of his
judgment is to displace Parliament's will as the means of determining the law.
According to Lord Justice Laws, it is no longer enough for Parliament to
declare its intention in an Act (in this case, "the pound or kilogram shall be
the unit of measurement"). Parliament's intention now depends on the inclusion
of a clause that might say, "…this repeals the metric provisions of ECA
1972".
Under British constitutional
law, such a clause is superfluous; of course new Acts repeal earlier Acts. It
is not necessary for Acts to say that they are intended to be law; Acts
are the law - and the most recent Act of Parliament on choice of units
says the pound or the kilogram, the yard or the metre, shall be
the units of measurement for use in the United Kingdom. Until Parliament passes
a new Act to repeal or amend W&M 1985, BWMA says pounds and ounces remain
lawful.