Other Eurorealist sections
Weights & Measures
Michael Shrimpton 
(Barrister) full legal 'OPINION'
Contents  Page1 Page2  Page3  Page4  Page5 
 Page 2
 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a statute after 1972 conflicts with community law, like the 1985 Act (all pre-1972 statutes are expressly or impliedly repealed by the 1972 Act and are subject to community law) it is still a statute.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


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).

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