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4 Original first published
Opinion
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This opinion is made freely available to anyone who wishes to use it
to defend themselves against the European Union’s laws regarding
weights and measures or any action that their aparachicks may take to
enforce their laws on the British peoples, in this matter, with or
without the assistance of their effective subsidiary, the Parliament
at Westminster.
It must be stressed that this is the qualified opinion of a barrister,
Michael Shrimpton [Barrister], and Jeffrey Titford MEP [UKIP], Messrs.
Bennett (Solicitors) or their agents or employees can not be held
responsible for any consequential damages relative to this
‘opinion’.
In re the Weights and Measures
(Units of Measurement) Regulations 1994
And in Re the Weights and Measures Act
(Metrication) (Amendment) Order 1994
And In Re the Law of the Constitution
1. Introduction
1. By instructions in writing received from Messrs Bennetts,
solicitors, of Harlow in the County of Essex, on 8th December 1999, I
am asked to advise the United Kingdom Independence Party on the
validity of the Weights and Measures (Units of Measurement)
Regulations 1994 and the Weights and Measures Act 1985 (Metrication)
(Amendment) Order 1994. These regulations purport to introduce
compulsory metrication in the United Kingdom.
2. There is no reason at all why a political party should
not seek the advice of counsel. As is well-known the United Kingdom
Independence Party ('UKIP'), as its name implies,
pursues a policy of the withdrawal of the
United Kingdom of Great Britain and Northern Ireland from the European
Community. It is a perfectly proper policy and I wish to say nothing
against it, indeed it will be recalled that it was for many years the
policy of the governing party. It will also be recalled that
aside from sending an observer the Conservative Government of the day
resolved to have nothing to with the negotiations which led to the
Treaty of Rome. I might add that it would seem from recent opinion
poll evidence that the policy has the support of the country. There it
is.
3. I have of course disclosed to those instructing me that I am
a member of a different party. In accordance with the tradition
of the Bar the advice I give is free of party political
considerations. I should give the same advice to my own party (the
Conservative and Unionist Party) or to any other political party. I
suppose that in the course of my career at the Bar I have prosecuted
as many cases as I have defended (I have never felt it necessary to
keep a count), including trading standards pr6secutions. If I
were called upon to advise a local authority I should give exactly the
same advice about the vires of these purported regulations. I should
also disclose that I am a member of the British Weights and Measures
Association. No conflict of interest arises.
2. Metrication
4. I have read with interest the correspondence passing between Mr.
Jeffrey Titford MEP and various trading standards departments in the
East of England. The Metric Celsius system of measurement was of
course introduced by the French Revolutionary government from 1790,
the basic linear unit, the metre, being based on a miscalculation of
the surface distance between the North Pole and the Equator through
Paris (why anyone would ever want to travel from the North Pole to the
Equator via Paris was never made clear). Some Imperial measures
continue in use on the Continent down to the present day, a point
acknowledged by the Minister in his letter to Mr Titford dated 1st
October 1999, a copy of which is enclosed with my instructions.
5. It is sometimes asserted that the metric system
has been generally adopted, but that is not right. The world's largest
economy (and our largest trading partner), the United States,
continues to use English measurements, a point I was able to confirm
on a recent visit to celebrate the Thanksgiving holiday -every
signpost was in miles and every petrol pump calibrated in gallons
(albeit American gallons!). I understand that a number of states have
abandoned moves to convert to metric, a trend likely to be accelerated
by the loss of the Mars Climate Orbiter after the Jet Propulsion
Laboratory in Pasadena wrongly assumed engine thrust to have been
expressed in Newtons as opposed to pounds thrust. I am told that
Canada (where the use of metric measurements caused an airliner to
crash) is pulling back from compulsory metrication.
Imperial measures remain in near-universal use in aviation (save for
Russia, where the calibration of aircraft instruments in metric
contributed to a mid-air collision) and at sea (e.g. nautical miles).
6. Metric measurements were made lawful for use in
the United Kingdom in 1897, but proved to be of limited utility and
the metric system did not gain widespread acceptance. No doubt
with a further application to join the European Community in mind the
government in 1965 announced a new policy of compulsory metrication.
It did not enjoy democratic legitimacy (people and businesses were
perfectly at liberty to use metric if they wished, but they declined
to do so) and proceeded slowly. Eventually Council Directive
80/181/EEC, as amended by Council Directive 89/617/EEC, provided for
compulsory metrication across the European Community and it was in
response to these directives that the 1994 Regulations were brought
in, their purpose being essentially to outlaw the imperial system and
criminalise its use, subject to limited exceptions such as the pint of
beer and the pint of milk (but only if sold in bottles). If valid the
combined effect of the Regulations would make it a criminal offence in
England, from 1st January 2000, for a grocer to sell a pound of
apples.
3. The Weights and Measures Act 1985
7. This was a consolidation Act, which has a bearing on its interpretation, as a consolidation statute is presumed not to alter the law unless the contrary intention appears (Bennion, Statutory Interpretation, 2nd ed., at 442). By section 1 a dual system of weights and measures is expressly provided for and the yard and the pound are defined (curiously by reference to their metric 'equivalents,' although there are no metric equivalents and the new yard is slightly longer than the old.) Schedule 1 expressly refers to Imperial measurements including the mile, yard, foot and inch (in Part 1), the acre, square yard and square foot in Part II, the gallon (ludicrously defined as "4.54609 cubic decimetres"), quart and pint in Part IV and the pound and ounce in Part V.
8. Schedule 3 is headed "Measures and weights
Lawful for Use for Trade" and again expressly refers to Imperial
linear, square, and capacity measures and Imperial weights. It
is clear beyond a peradventure of a doubt that the use of Imperial
weights and measures for all purposes has been expressly authorised by
the Imperial Parliament at Westminster. No amending Act has been
introduced. Under the Law of the Constitution no Act of Parliament may
be amended save with the authority of Parliament. I turn now to
consider what Parliamentary authority there might be for the 1994
secondary legislation.
4. The Units of Measurement Regulations
9. These purport to amend the Weights and Measures
Act 1985 ('the 1985 Act') by Regulation 4(4), adding a new Regulation
11 to the Units of Measurement Regulations (SI 1986/1082),
whereby units of measurement specified in Schedule 3 to the
Regulations are deleted. These are all imperial
measures. Regulation 6 purports to amend the 1985 Act from 1st October
1995, inter alia by removing from Parts 1 and II of Schedule 1 to the
1985 Act all reference to imperial units (Regulation 6(5)(a)).
Regulation 7 purports to further amend the 1985 Act from 1st January
2000 by deleting reference to the fluid ounce, pound and ounce. It is
the operation of this regulation 7, which has led to the threats to
traders referred to in my instructions, albeit that the prosecuting
authorities each express the wish that traders will submit to
metrication without the need to trouble the courts.
10. The weights and Measures Act 1985 (Metrication)
(Amendment) Order also purports to amend the Act, but only section
8(2) and Schedules 3 to 7.
Critically, this order leaves Section 8(1) and Schedule 1 untouched. Section 8(1), which is not purportedly amended in either set of regulations, provides as follows: - No person shall use for trade any unit of measurement which is not included in Parts 1 to V of Schedule I to this Act, or...
Section 8(2) goes on to deal with having in possession for use for
trade measures (e.g. scales) which are not included in Schedule 3,
which is purportedly amended by Article 3(3). There may therefore be a
different legal result depending upon the precise nature of the
offence alleged, although the conflict set up by this cumbersome
regulatory scheme may be impossible to resolve in favour of the
prosecution (if one set of regulations is invalid and other valid it
would arguably be legal to sell a pound of apples but illegal to own a
set of Imperial scales).
11. The scheme of the regulations is to leave
Section 8(1) alone and simply delete Imperial measurements from
Schedule 1, which is of course referred to in Section 8(l)(a).
The first thing to be said is that this must surely be the most
obscure method of amending an Act of Parliament ever devised. Had the
Minister intended to mislead Parliament or the public by disguising
what he was seeking to do he could not with respect have chosen a more
effective method. I have seen pleadings in Chancery which were a model
of clarity in comparison.
12. When these matters get to court it will be
necessary for counsel to prepare a form of Scott schedule, to be
agreed if possible with prosecuting counsel, setting out the original
wording of the 1985 Act, the wording contended for by the prosecution
(i.e. as purportedly amended) and the effect of each set of
regulations being valid on their own (i.e. 8 split result).
5. The European Communities Act 1972.
13. The possibility of a split result arises because
for reasons which only the Minister could explain he used two
different powers. The Units of Measurement Regulations were introduced
under the alleged power conferred on the Minister by section 2 of the
European Communities Act 1972. Notoriously this ludicrous piece of
legislative drafting purported to bind future parliaments by means of
sub-section (4), "...any enactment passed or to be passed
... shall be construed and have effect subject to the foregoing
provisions of this section." That was a nonsense and a
constitutional impossibility, because as is well-known our sovereign
parliament cannot bind its successors and in the event of conflict the
later Act takes precedence (subject only to the limited
generalia specialibus non derogant rule which does not apply here and
where in truth there is no conflict at all because the later general
words are reconciled with the earlier enactment). If authority were
needed for the above proposition it is be found in Dicey, The Law o~
the Constitution (10th ed., Part 1, Chapter 1, passim). The law is
correctly stated, with particular clarity, by this immortal jurist
between pages 64 and 70, passages which I humbly and respectfully
adopt in their entirety.
6. lmplied Repeal
14. Not only may Parliament repeal any previous
legislation expressly it may do so impliedly and at will, through the
simple expedient of enacting legislation which is inconsistent with
the earlier enactment. This is known as the Leges Posteriores Priores
Contrarias Abrogant Rule (see Bennion, op cit, at 204, citing inter
alia Sir Edward Coke, 1 Inst 25b). It is an ancient rule, as old as
Parliament itself, of immense constitutional significance,
guaranteeing as it does the liberties of parliament to legislate and
by extension the liberties of the British people. The Constitution
admits of no higher authority than the Sovereign in Parliament. The
Leges Posteriores rule is absolute and admits
of no exceptions, not even Magna Carta or the Bill of Rights
(indeed the Court of Appeal has only recently rejected an attempt to
protect the Bill of Rights against the rule and rightly so, with
respect, in ex p Burke, upholding the judgment of Popplewell J.).
15. The power of the Leges Posteriores Rule was
recognised by the draftsman of the Human Rights Act 1998. Although not
in force (save for minor sections) this legislation was designed to
incorporate the controversial European Convention on Human Rights into
UK law. Some proponents of the ECHR, seemingly unaware of basic
constitutional principles, bizarrely proposed that subsequent
Parliaments be bound. Of course that was not possible and in the event
that a later Act of Parliament is found to have contravened a
provision of the Convention the courts are limited to a declaration
that the later Act is inconsistent, leaving it to Parliament to bring
in amending legislation if it so p leases, it being a matter entirely
for Parliament. Of course Parliament would be free not
to amend the legislation, or for that matter to repeal the Human
Rights Act, which like the European Communities Act 1972 and the Bill
of Rights is an ordinary Act of Parliament subject to repeal both
express and implied repeal in the normal way.
16. Section 2(4) of the European Communities Act 1972 was
not the only ineffectual attempt to undermine the sovereignty of
Parliament by seeking to tie the hands of future Parliaments. His late
Majesty King Henry VIII tried it, as recorded by Bacon, cited by
Dicey, op cit at 64-5n, seeking to provide that no statute made during
the minority of a King should be binding until confirmed by the King
under His Great Seal at full age. This was as futile as Section
2(4) and was duly repealed early in the reign of our child king,
Edward VI. No-one has ever doubted the authority of the King in
Parliament in the reign of King EdwardVI.
17. The next figure in our island story to try to
attack Parliament in this way was David Lloyd-George, who was Prime
Minister when the Acquisition of Land (Assessment of Compensation) Act
1919 was passed, s.7(l) of which purported to bind future Parliaments.
Surprisingly, withrespect, counsel (Mr. Hill) was found who was
willing to assert that s.7(l) bound future parliaments. In due
course a case was stated by an official arbitrator appointed under the
Act and the matter came on for argument before the Full Divisional
Court (Vauxhall Estates Ltd V Liverpool Corporation [1932] 1 733).
That most distinguished tribunal (with respect), Mr Justice Avory, had
no hesitation in rejecting Mr. Hills'
startling submission that a section of an Act passed in 1919 could
somehow affect an act passed in 1925. The learned judge ruled as
follows (at 743):
... we are asked to say that by a provision of this Act of 1919 the hands of parliament were tied in such a way that it could not by any subsequent Act enact anything, which was inconsistent with the provisions of the Act of 1919. It must be admitted that such a suggestion as that is inconsistent with the principle of the constitution of this country.
Avory J. went on to point out (at 743-4) that if the 1925 Act were
inconsistent with the 1919 Act "the earlier Act is impliedly
repealed by the later.”
18. The Vauxhall Estates case was heard by an
exceptionally powerful Divisional Court. Sir Horace Avory (1851-1935)
was perhaps the greatest judge to sit in the King's Bench Division in
the century just ending and acted as Lord Chief Justice when Lord
Hewart CJ was ill. His judgment on this occasion was supported
by no less a legal personage than Sir Travers Humphreys, of whom the
Biographical Dictionary of the Common Law records (at 264) that as a
criminal prosecutor "he was so fair that he left nothing for the
defence to say." His cases at Bar included the prosecutions of
Oscar Wilde, Dr. Crippen and the traitor Sir Roger Casement. His
judgment in Vauxhall Estates (at 745-6) is succinct, closely reasoned
and correct (with respect)
…In this case the argument for the claimant is that s.46 of the
Housing Act, 1925, does not, and never can, apply to this or any other
case, inasmuch as it is utterly void and of no effect.. That is
certainly an astonishing proposition, and Mr. Hill has based it upon
the language s.7,sub-s 1, which provides that : "the provisions
of the Act or order by which the land is authorised to be
acquired ...shall...have effect subject to this Act,"
and further that: "so far as inconsistent with this Act those
provisions shall cease to have or shall not have effect."
(emphasis added) He says that these words mean that at no subsequent
time shall it be competent for parliament to alter the law as there
laid down, except in or other of two ways. He admits very frankly that
it would be open to Parliament to repeal that sub-section
by express enactment, and he admits that it would be open
to parliament at any subsequent time to amend that sub-section by
implied enactment. He says, however, that the ordinary rule of
construction, which lays down that where two inconsistent provisions
are found in two Acts of parliament, the one
passed subsequently to the other, the
later provision shall prevail and shall be deemed impliedly to repeal
the earlier provision, (emphasis added) cannot apply to this
sub-section because of its special terms. For my part I fail to follow
that argument. If it is once admitted that Parliament, in spite
of those words of the sub-section, has power by a later Act expressly
to repeal or expressly to amend the provisions of 'the sub-section and
to introduce provisions inconsistent with them, I am unable to
understand why parliament should not have power impliedly to repeal or
impliedly to amend these provisions by the mere enactment of
provisions completely inconsistent with them.
I do not see how that exposition of the law could be improved upon and
I do not propose to attempt the task, contenting myself with
respectfully adopting that passage as a correct statement of the law,
with inevitable consequences for the Units of Measurement Regulations.
19. Mr. Hill did not rest there. He thought it right (it
was a matter for him) to ventilate his argument two years later before
the Court of Appeal. Another strong court (Scrutton & Maugham LJJ
and Talbot J) threw the argument out. The case is reported as Ellen
Street Estates Ltd V Minister of Health [1934] 1 KB 593.
Lord Justice Scrutton, having described Mr. Hill's argument (at 595)
as "impossible," went on to say Such a contention involves
this proposition, that no subsequent parliament by enacting a
provision inconsistent with the Act of 1919 can give effect to the
words it uses.
This passage emphasises an important aspect of the doctrine of implied repeal - it rests upon the express will of parliament. Applying the weights and Measures Act 1985 requires no more than giving effect to its clear and express words It is nothing to the point that there are no express words of repeal or amendment of the European Communities Act 1972 - as both the Divisional Court (whose decision was upheld in Ellen Street Estates, at 596) and the Court of Appeal held words of repeal are not necessary. 20. Neither Scrutton U nor Maugham LJ decided the case on the basis that s.7(l) of the 1919 Act did not purport to bind future parliaments (although the junior member of the court, Talbot J, whilst agreeing with his brother judges, was prepared to adopt such a construction (at 598)). The judgment of Maugham U (later a Lord of Appeal in Ordinary) contains an admirably concise statement of the constitutional position, at 597:
The Legislature cannot, according to our constitution, bind itself as
to the form of subsequent legislation, and it is impossible for
parliament to enact that in a subsequent statute dealing with the same
subject-matter there can be no implied repeal. (emphasis added).
21. So far as I am aware the authority of these
decisions has never been called into question in a court of law
in England, nor is there any
constitutional basis for doubting them. There was no revolution
in 1972 - all that happened is that parliament was persuaded (by
doubtful means it must be said) to pass an Act of parliament. The
parliament of 1985 was no fewer sovereigns than the parliament of 1972
and it could and what is more did over-ride the European
Communities Act and Council Directive
80/181/EEC at will. For the reasons explained by Lord Maugham,
Lord Justice Scrutton and Mr. Justice
Humphreys the proposition that anything done in 1972 could have a
bearing on an Act of parliament passed more than a decade later is
unarguable and contrary to the Law of the Constitution. I would not
expect any Member of the Bar of England and Wales to put it forward.
22. I have highlighted these two cases because of
the clarity of the judgments, the outstanding quality of the judges
who delivered them and because they are precisely in point, given the
attempt in 1919 to bind future parliaments (I agree with the Court of
Appeal that section 7 of the 1919 Act is capable of bearing the
construction urged by Mr. Hill for the claimants). It should not be
supposed however that these are the only authorities on implied
repeal. I need only refer to Maxwell on the Interpretation of Statutes
(at 191 et seq.), to Bennion (op cit)(at 204-5), who does not like the
doctrine (or perhaps, with respect, does not like its
consequences) but who admits of its
existence, to Odgers Construction of
Deeds and Statutes (5th ed at 260-64), to Crales on Statute Law,
at 366-8 and Wilberforce, Statute Law, at 310-11, which between them
set out an overwhelming weight of authority, sufficient to crush the
1994 Regulations.
7. Repugnancy
23. The courts do not favour implied repeal and rightly so.
More than mere inconsistency is required. The test is one of
repugnancy, for which see the judgment of A L Smith J in West Ham
Church Wardens and Oversees V Fourth City Mutual Building Society
[1892] 1 QB 654 at 658
The test of whether there has been a repeal by implication by
subsequent legislation is this: are the provisions of a later Act so
inconsistent with, or repugnant to, the provisions of an earlier
act that the two cannot stand together?
Plainly those provisions of the weights and Measures Act 1985 which expressly authorise the use of Imperial weights and measures cannot be reconciled with community law, which seeks to outlaw those self-same weights and measures and force the European system of measurement upon us by means of criminal sanctions, indeed force a change to our way of life, so central are our much loved and familiar weights and measures to the British way of life. 8. The Factortame litigation
24. I have not left out of account the Factortame
litigation, during the course of which the Divisional Court purported
to issue an injunction to the Minister not to obey Part II of the
Merchant Shipping Act 1988. The background to the case (in which I was
instructed as counsel, at the very end, by certain UK fishing
interests, who were desirous of intervening under Order 53, but who
did not pursue the application) was that our fishing stocks were being
depleted by Spanish fishing vessels operating in British waters using
the Red Ensign as a flag of convenience. Quite properly
Parliament outlawed this abuse and the
Spanish fishermen then sought to invoke community law, their intention
being to use European community law to allow them to sail in British
waters under the British flag, seizing a marine resource which under
international maritime law belonged to Britain, against the will of
the British people as
expressed by their democratically elected
Parliament. The litigation which resulted (and which has just led to a
further judgment of the House of Lords (16th December 1999) on the
issue of damages) has been the most controversial since Darnel's Case
(1627) 3 St. Tr. 1, where the wrongful refusal of the judges to uphold
the common law' and grant Habeas Corpus to John Hampden and others
helped plunge the country into the Civil War (in which Colonel Hampden
was to play a most gallant role, ultimately sacrificing his life in
the cause of Parliament and freedom). In Factortame the judges with
respect arguably went further than the judges in Darnel's Case,
because they refused to apply the Act of Parliament. With
the utmost respect that was unconstitutional and provided Parliament
with grounds for removing them (all higher judiciary appointments are
subject to removal for constitutional misconduct). The judges were
fortunate that Parliament was either supine or asleep.
25. I need not consider the Factortame litigation in
detail for the elegantly simple reason that the case was not fully
contested by the Law Officers, who chose not to argue the obvious
defence (with respect) of implied repeal. The result is that the
implied repeal point was not argued, indeed I have that on the
authority of one of the counsel for Factortame Ltd, who was present in
the House of Lords, who told me when I was brought in to advise the UK
fishing interests that one of the members of the panel (the late Lord
Brandon of Oakbrook), a specialist in maritime law, queried the
failure to argue the point.
26. The leading authority on the doctrine of stare decisis
under the law of England is Cross and Harris on precedent in English
Law. The law is correctly ~ out at pages 158-161 of the 4th edition,
citing authorities such as Baker V The Queen ~l975] AC 774 (PC) and
the decision of the Court of Appeal in National Enterprises Ltd V
Racal Communications Ltd [1975] Ch.397. These are modern authorities
but there is nothing new or remotely difficult with the concept that
decisions without argument are not binding, the rule being set out in
R V Warner (1661) 1 Keb 66, the authority of which to my knowledge has
never been called into question in any English court in the one-third
of a millennium since.
27. The decisions in Factortame, which are mostly
taken up with the community law points in any event, are not binding.
The decisions on implied repeal to which I have referred are however
binding, in my opinion at every level of the judicial system.
28. The proposition that the courts would refuse to
apply the weights and Measures Act 1985 involves saying that after
having had the benefit of full argument on the law of the constitution
(which neither the Divisional Court nor the House of Lords had in
Factortame) the judges would wilfully and deliberately defy
parliament. Such a state of affairs has never occurred in all our long
constitutional history and is unthinkable. It is not for the
judiciary to choose which laws they will obey and which they will not,
nor is the political opinion of any individual judge or magistrate on
whether we should have metric or (should have metric or Imperial
measurements or (as parliament has laid down) both, or should or
should not be members of the European community a relevant
consideration. The consequences of defying community law are for
parliament to consider. As with the Human Rights Act 1998 the
courts are limited to declaring that the act is inconsistent with the
international (i.e. community) law provision. The executive if
so advised can then cure the defect either by bringing in
amending legislation and persuading parliament to accept it, or
persuading the European authorities to
revoke Directives 80/181/EEC and 89/617/EEC, or withdrawing from the
European Community, so that the repugnancy disappears.
9. Community Law
29. Community law is clear: the UK is under an obligation
to yield to metric and abolish the Imperial system. I have even seen a
suggestion from a civil servant (in a circular referring to a letter
of mine in the Daily Telegraph) that the Directives have direct effect
and should be applied without more by the courts, an entirely novel
suggestion given that there is an Act of Parliament standing in the
way!
30. The law of the European Community is not however
a relevant consideration for our courts because they are not permitted
to apply it unless authorised by Parliament. That is because the
United Kingdom, in common with all advanced and successful countries,
is a dualist jurisdiction, where international law has no effect
unless and until it has been incorporated into municipal law (see e.g.
the decision of the House of Lords in Brind [1991) 1 AC 696). In an
ordinary case the courts are authorised to apply community legal
instruments by the European Commnuities Act 1972. In this case there
is no Parliamentary authority because a later enactment has impliedly
repealed the European Communities Act 1972 and in accordance with the
Law of the Constitution it is the duty of the courts at every level to
apply the later Act.
31. It is sometimes asserted that we knew about the
so-called supremacy of community law when we signed up to the Treaty
of Accession. That is partly true, although it is tolerably
clear that Parliament and the country were kept in the dark. It is
also true tosay that there is a rule of international law, reflected
in Article 46(1) of the Vienna Convention on the Law of Treaties,
whereby sovereign states are taken to know the manifest features of
the constitutions of all other state parties to a treaty. The rule
that one Parliament may not bind its successors is a manifest doctrine
of the Constitution of the United Kingdom of fundamental importance,
within the meaning of Article 46(1) of the Vienna Convention. It
is scarcely to be supposed that the delegates of the Six were so
lacking in competence as to be unaware that the perfect incorporation
of an international treaty in the United Kingdom is an impossibility
(and rightly so). Our community partners cannot be heard to complain.
32. It is possible under community law to levy
penalties for non-compliance, but that cannot apply to the United
Kingdom in this case, because no penny piece of the public revenues
may be expended without the sanction of Parliament, which is plainly
lacking in the instant case. The Luxembourg court could
decide upon a penalty but until the Weights and Measures Act is
repealed or amended there is no mechanism by which public funds could
be used to pay it.
10. Vires of the Regulations
33. I advise that the Weights and Measures (Unit of
Measurement) Regulations 1994 are ultra vires, null and void and of no
legal effect whatsoever. I need hardly go on to consider the
vires of the Weights and Measures Act (Metrication)(Amendment)
Order 1994, because the prosecution would be left in such an
impossible position once the first set of regulations had gone that
they could scarcely continue - indeed no prosecution should
be commenced and any local authority
which did so would be engaged in
unconstitutional defiance of Parliament. The draftsman of the second
set of regulations was so clearly labouring under the delusion that
the first set were valid that it is a strongly arguable that they fall
a fortiori.
34. There is a further difficulty and it is this. No
doubt with a view to avoiding proper Parliamentary scrutiny (which is
the whole purpose of these powers) the Minister chose to use the Henry
VIII clauses in the 1985 Act. These despotic powers (named after King
Henry VIII for that reason) were roundly condemned by Lord Hewart of
Bury, a most distinguished Lord Chief Justice, in his splendid text,
The New Despotism and I would wish neither to add anything to nor
subtract anything from that which the Lord Chief Justice said. These
clauses are construed tightly against ministers and rightly so. I have
never heard of a Henry VIII power being used to such devastating
effect and certainly not in a consolidation statute, which is presumed
not to alter the law! I am very doubtful indeed that this power
has been used properly and I advise that the second set of regulations
are also ultra vires, although they are so tightly bound up with the
first set, which are so clearly ultra vires, that we need hardly
consider the Henry VIII point.
11. ECHR
35. I am very doubtful about the Article 10 point, but I
do not need to consider it in detail, given the effect of my earlier
advice.
12. Conclusion
36. No prosecution should be commenced and if one
were it would be as misconceived, unconstitutional and improper as any
prosecution ever brought. I can only advise of course and I
cannot speak for the courts, but I cannot conceive that they would be
willing to defy Parliament in the way that the minister suggests that
they should. If the Minister wishes to make it an offence to
sell a pound of apples he should first go to Parliament and get an Act
which says so. This one does not and the futile attempt to amend
it by reference to an earlier Act is of no legal consequence. I
advise accordingly.
Michael Shrimpton, of Gray's Inn,
Barrister. Dated this 22nd day of December 1999 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Produced in electronic format (e&oe) by: Greg@GlanceBack.demon.co.uk(Greg Lance-Watkins) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ If you require a copy of this ‘e’mailed to anyone (your solicitor etc.) please contact: Greg@GlanceBack.demon.co.uk ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ If you require assistance obtaining a solicitor to defend a case Please contact: Greg@GlanceBack.demon.co.uk ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Good luck & if I can help you in your efforts in defence of the British peoples and our Nation or the rights and freedoms of any peoples against the EU, NAFTA, WTO, IMF, OWG, NWO etc. please just ask. Do visit our shop, if you are ever in the area, we are open from 10.30ish. till 5.30pm., 6 days a week.
Regards,
Greg
Greg Lance - Watkins,
The Welsh Assembly, c/o Glance Back Books, 17 Upper Church Street, CHEPSTOW, NP16 5EX Monmouthshire, Britain.
'e'mail Greg@GlanceBack.demon.co.uk
tel: 01291 - 626562 fax: 01291 - 628787 See the Web Sites: METRICATION a full legal 'Opinion' http://www.silentmajority.co.uk/eurorealist & CHALLENGE to Politicians of Stature http://www.silentmajority.co.uk/eurorealist/Challenge.html UKIP's site http://www.ukip.org |
