Michael Shrimpton (Barrister) full legal 'OPINION'
Contents Page1 Page2 Page3 Page4 Page5
In re the Weights and Measures Act 1985
And in re The European Communities Act 1972
And in re the Prices Act 1974
And in re the Law of the Constitution of the
United Kingdom of Great Britain and
O P I N I O N
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  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.
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)
13. As the Court of Appeal held in Ellen Street Estates Ltd -v- Minister of Health  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  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  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  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  P 33 (CA)). Section 7 of the Mortmain and Charitable uses Act 1891 impliedly repealed the Gifts for Churches Act 1803 (Re Douglas  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  1 Lloyd's Rep. 342 (High Court of Australia), Salomon -v- Customs and Excise Commissioners  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  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  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  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 
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 personĉ. 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 quĉ 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?)