72. I am asked to comment on observations by officials of the European Community, who are said to have threatened non-forcible sanctions against the United Kingdom, in the wake of the perfectly proper decision of the UK's leading chain of supermarkets to offer its customers the choice of Imperial or metric (as a matter of law there is no reason why supermarkets could not go Imperial only, for pre-packaged items, loose goods and petrol). I will not comment on what was said on the radio (although I am grateful to the BBC for supplying me with a tape) without an agreed transcript, having regard to the implications in international law of making a threat of non-forcible measures against a Sovereign State. As a matter of community law there is an obligation on the United Kingdom government to force compulsory metrication on her civilian population, but I cannot think that the absence of democratic consent is without consequence in international law.

73. As I advised in December (paragraph 31) there is a rule of public international law, reflected in Article 46(1) of the Vienna Convention on the Law of Treaties (UKTS No 58(1980) Cmnd.7964) whereby a state party to a treaty may be taken to know the internal rules of fundamental importance of other state parties. In my opinion, necessarily expressed tentatively because we are moving through uncharted waters, a supranational organisation may not take non-forcible measures against a state party where an internal rule of fundamental importance prevents that party from complying with a treaty obligation. Put shortly the United Kingdom might have a defence in international law, in which event sanctions such as fines (provided for in principle under community law) would be wholly inappropriate. I have regard not only to the Vienna Convention on the Law of Treaties, but also to the Charter of the United Nations, which refers expressly to the rights of nations in the Preamble and to the over-riding principle of self-determination in Article 1(2). I further have regard to the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States (Annex to General Assembly Resolution 2625 (XXV)). The Declaration, assented to by each of the state parties to the Treaty of Rome and the TEU, refers expressly to the principle of non-intervention in internal affairs and holds that such intervention "violates the letter and spirit of the Charter (and)... leads to the creation of situations which threaten international peace and security". It should be borne in mind that unless the 1985 Act is repealed there would be no mechanism for voluntary payment of any fine levied by the ECJ, because of internal rules governing the use of the Consolidated Fund of the United Kingdom. I assume that the European Commission are aware of that and accept that collection of any fine would require seizure of UK non-state assets under community jurisdiction, a procedure which whilst it might be lawful under community law (on a purposive construction) seems to me to be questionable under general international law to say the very least.

74. A threat by the European Commission to enforce directive 80/181/EEC would if made (I shall assume in favour of the commission in the absence of a transcript that no such threat was made or intended in the public comments in this jurisdiction of officials of the Commission) raise potentially fundamental and far-reaching points of public international law arising out of the interface between community and general international law. It should be remembered that because of the non-sovereign (and therefore inferior) status of the European Community in international law it would not be relying on internal rules (such as the rule that no Parliament may bind its successor) but treaty law (including the directive which derives its effect from Article 249) and the European Community cannot invoke an international treaty to interfere in the internal affairs of the United Kingdom in violation of general international law. Put shortly Brussels cannot have its gateaux and eat it - if it wishes to rely on an international instrument it must also have regard to the international status of the United Kingdom as a Sovereign State and respect the rules of international law, which protects sovereigns from interference in their internal affairs. Having regard to the fundamental importance of the principle that Parliament cannot bind its successors and further having regard to the sovereign will of the British people as expressed in primary legislation of their elected Parliament I advise that any threat to invoke non-forcible measures or sanctions against the United Kingdom in respect of Imperial trading whilst the Weights and Measures Act 1985 is on the statute book would amount to an unlawful interference in the internal affairs of the United Kingdom contrary to the principles and purposes of the United Nations and the 1970 Declaration of Principles on International Law.

75. So far as remedies are concerned recourse to the ECJ plainly would not be effective, nor as a treaty tribunal could it fairly decide as between the UK and the European Commission on an issue as sensitive as this, nor following Factortame could the UK reasonably be expected with respect to have any confidence in the impartiality of the court or its willingness to respect the UK's sovereign status. Recourse to the International Court of Justice in the Hague is generally taken to be precluded by Article 292, although I entertain reservations about the relationship of this article to the UN Charter, including Article 95 and the Statute of the International Court of Justice, but that would not exclude conciliation by the Conciliation Commission (see the Annex to the Vienna Convention), which would require the consent of the opposing party and the Commission. Having regard to the possibility of a threat to international peace and security intervention by the UN Security Council would be an appropriate response to enforcement action against the United Kingdom, a Permanent Member of the Council, by the European Commission, but effective action might be hampered through use of the French veto. A further alternative, if the Commission did not back down, would be to treat enforcement action directed at forcing Parliament to change its mind as a casus belli justifying an armed response, either limited (eg by way of SSN blockade of EC ports) or general hostilities. Of course there are timid souls, like the minister with respect, who would enforce metric weights and measures on their own people rather than go that far just as there were timid souls in this country who were not prepared to go to the aid of the Belgian people in 1914 or the Polish people in 1939, but timidity is not a characteristic usually associated with the British people, as opposed to their governments, and the lesson of history is that timid governments usually collapse quickly in a crisis (as in May 1940), to be replaced by a British Government worthy of the name. I would respectfully advise the European Commission against trying to force the British people to abandon our dearly loved weights and measures, so much a part of our national history and character, in favour of the generally detested metric system, all the more detested now that it has become a powerful symbol of European domination through the clumsy attempt to ram it through against the wishes of Parliament.

76. Considerations arising from general public international law give rise to serious concern about the international compliance of European Community law, in two ways. Firstly the rule of community law (which I have referred to as the Factortame doctrine, although there are earlier cases) which requires the fundamental or basic laws of Member States to give way amounts to a serious interference in the internal affairs of the Member States in violation of the UN Charter and the 1970 Declaration of Principles, having regard also to the presumptive norm against subjugation to alien domination and exploitation (see Article 1 of the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 (UN General Assembly Resolution 1514 (XV)). Whilst it may be that direct effect instruments are compliant where regulations and directives do not purport to over-ride the basic and fundamental laws of the democratic societies whose democracy the basic laws are there to uphold, once that threshold is crossed it seems to me that the interference in the internal affairs of Member States is so violent as to amount to a denial of self-determination. No constitutional lawyer reading the judgment of the Danish Supreme Court in Carlsen & ors could fail to sense the unease and disquiet of the Court at the claims being made for community law over the Danish Constitution, nor could they fail to be moved by the evident adherence of the distinguished members of the Court to Her Danish Majesty or the Kingdom of Denmark Constitution Act, itself passed in the wake of much loss of young Danish life in the Resistance Movement, former members of which I had the privilege of meeting when I went to Denmark to hear the judgment. Secondly the metrication directive interferes with local customs established since time immemorial and the British way of life to such a degree as to amount to an unlawful denial of self-determination (that is to say these are matters for the UK to decide, not Europe). This works both ways : no-one in the UK would suggest that we could or should impose Imperial weights and measures on European states. People in areas under British military occupation (eg the British Zone in what became West Germany and the British Sector in West Berlin) were not forced to adopt the Imperial system, with which they would have been no more comfortable than we are with SI/metric.

77. The inalienable right of a nation and people to self-determination is a peremptory norm of general international law and part of the jus cogens, its importance being reflected in the Preamble to the UN Charter, in Articles 21(1) and (3) of the Universal Declaration of Human Rights (with which the Factortame doctrine is plainly inconsistent, seeking as it does to assert a supranational will over the elected legislature of this realm), Article 1(1) of the International Covenant on Human Rights and Article 1(1) of the International Covenant on Civil and Political Rights. I respectfully adopt the following passage from the judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor -v- Furundzija (unreported, Case No IT-95-17/1-T 10, 10th December 1998), expressly approved by the House of Lords in R -v- Bow Street Metropolitan Stipendiary Magistrate & ors ex p General Augusto Pinochet Ugarte [2000] 1 AC 147, per Lord Browne-Wilkinson at 198 :

Because of the importance of the values it protects ... has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even 'ordinary' customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by states through international treaties or local or special customs or even general customary rules not endowed with the same normative force (emphasis added).

 

78. The Pinochet and ICT judgments reflect Article 53 of the Vienna Convention on the Law of Treaties, which confirms that treaty provisions in violation of the jus cogens are void. Article 71(1)(a) sensibly appears to accept the possibility that void provisions may be severed, which must be right, saving the valid part of the treaty. Article 2(1)(a) is broad enough on a purposive construction to embrace directives as separate international agreements (the word 'treaty' is not a term of art and simply means an international agreement), so that a directive may be void as violating the peremptory norm of self-determination without necessarily infecting the Treaties establishing the European Union and Community.

79. In the premises I formally advise that re-numbered Article 249 of the Consolidated Treaty Establishing the European Community is void in so far it purports to over-ride the fundamental or basic laws of the Member States of the European Community, in the case of the United Kingdom of Great Britain and Northern Ireland primary legislation enacted with the over-arching constitutional authority of Our Liege Sovereign Lady the Queen in Parliament assembled, on the ground of violation of the peremptory norm of general international law in favour of the self-determination of nations and peoples. No regulation or directive, whether having direct effect or not, may over-ride an Act of Parliament, or conflict with the constitutional or basic law of any Member State, each of which including the Grand Duchy of Luxembourg is a Sovereign State under international law and may claim the inalienable right of self-determination.

80. I further advise that Directive 80/181/EEC as amended by Directive 89/617/EEC is void as against the United Kingdom of Great Britain and Northern Ireland (and most probably the Republic of Ireland) as being in conflict with the said peremptory norm of general public international law in so far as it purports to impose the International System of Measurement and throw over the Imperial system of weights and measures by law and custom established. This is a further ground for saying that the Units of Measurement Regulations are ultra vires, null and void. The Amendment Order clearly assumes that the said Directives are valid and have binding effect (Explanatory Note, paragraph 1) and this is a further ground on which to strike down the Order in Council.

81. I am aware that there will be those who think this Opinion insufficiently communautaire or perhaps not supine enough for political comfort, but I cannot help that. (Some may also suggest that I have used too much Latin, to which I say mea culpa). The obligation on counsel is to advise on the law as he or she conceives it to be, having taken the trouble of looking it up. I take the law as I find it, in the books. It may be objected that I have relied on old authorities, but it is a great mistake to hold that a legal principle which has stood the test of time and is supported by centuries of authority, such as the principle that Parliament may not bind its successors, is less valid than one which was invented last week. It is an even greater mistake to throw over the principles of the Constitution to arrive at a result that is politically convenient in the short term. That was done in the 17th century, when the judges failed to uphold the principles of liberty and the Constitution against the King, with the almost inevitable consequence that the country was plunged into the Civil War.

82. It is I am sure an uncomfortable legal fact for those who support Britain's membership of the European Community that the European Communities Act 1972 has no greater status than the Dangerous Dogs Act 1991, but that is the law. Thankfully, the European Communities Act is no more entrenched than the Dangerous Dogs Act and no good can come of pretending otherwise. The answer to the minister's apparent dilemna is to put forward new primary legislation. If the reason he is unwilling to do that is because the Chief Whip has taken fright and thinks it will not go down well with the back bench, or the government's business managers in the Upper House fear a bruising confrontation, or focus groups suggest it will cost the government ten points in the polls, there is even less reason for the courts to bail the executive out by upholding plainly invalid secondary legislation.

83. It is a very strong thing for a court in this country deliberately to go against an Act of Parliament - even in the 17th century the courts did not go that far. It is impossible to predict the damage that would be done to the fabric of the Constitution, but on any view it would be very great. In the 17th century the damage eventually was repaired but only after civil war, regicide, dictatorship, great loss of human life and damage to property. It is doubtful if the national economy recovered much before the end of the century. However such a decision was presented the reality would be that the courts had allied themselves with the executive against the legislature and both the judiciary and the executive would be open to the accusation that they were acting as puppets of the European Union, inviting odious comparison with Vichy.

84. I do not say that a judge is not entitled to support membership of the European Community. A judge is entitled to his or her own view, however eccentric it might be. Economic or political literacy is not a requirement for judicial office (although knowledge of the law is helpful) and a judge is as entitled to support the single currency as he or she is entitled to believe in Esperanto. What a judge must never do however is to allow his or her political opinion to influence his or her judgement - in the case at hand because upholding the Constitution might cause difficulties for ministers in Brussels. As Chief Justice Tindal said in Warburton -v- Loveland (1832) 2 D & Cl 480 at 489 :

Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.

 

85. I can only advise of course and I cannot warrant the decision of any court. Darnel's Case and Factortame with great respect are proof enough that the courts may fall into error, even disastrous error. My advice however is clear and I adhere to the opinion I expressed in December : the Units of Measurement Regulations and the Amendment Order are ultra vires, null and void and the Weights and Measures Act 1985 remains in force in full measure, unamended, guaranteeing for so long as it remains on the statute book the liberties of Englishmen and women to deal in pounds and ounces, gallons and pints and feet and inches as under an Almighty and Merciful Providence they have always done. The Law of Nations, so far from oppressing the British people, who fought so hard and sacrificed so much in the last century for the rights of nations and to whom so many peoples, including European peoples, owe their freedom, guarantees their inalienable right to self-determination. Precisely because a peremptory norm of general international law is inalienable the priceless right of national freedom was not bartered away by the weak and feeble ministry which signed the Treaty of Accession to the Treaty of Rome. There it is. I advise accordingly.

............................

Michael Shrimpton, Esq.,

of Gray's Inn,

Barrister.

Dated this 7th day of August

in the Year of Our Lord 2000

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 Northern Ireland

____________________________________

O P I N I O N

____________________________________

Michael Shrimpton, Esq.,

Tanfield Chambers,

Francis Taylor Building

Temple EC4

Messrs Bennetts,

Solicitors,

Harlow,

Essex

Table of Cases (ii)

Introduction Paragraph 1

The Internet 7

Trading Standard Review 8

Implied Repeal 10

Further Examples 18

s. 1(3) of the Weights and Measures Act 19

The Henry VIII Clauses 24

European Community and UK law 30

Non-Sovereign Status of the EC/EU 33

Primary versus Secondary Legislation 41

Threefold Consent 42

Ultra Vires regulations are void 47

Observations of the DTI 49

Venue and Jurisdiction 53

Judicial Review 57

The Price Marking Orders 62

The Weighing Equipment Regulations 1988 63

Imperial Testing 65

Compensation 66

The vires of the Directives 68

Sanctions Against the United Kingdom 72

Compliance of the Treaty of Rome with 76

the Jus Cogens

Conclusion 81

(i)

Table of Cases

(by paragraph number)

Associated Provincial Picture Houses 45

Ltd -v- Wednesbury Corporation [1948]

1 KB 223

Re Athlumney ex p Wilson [1898] 2 QB 547 25

Attorney-General for Canada -v- A-G for 32

Ontario [1937] AC 326

Bloxam -v- Favre (1883) 8 PD 101

Bowles -v- Bank of England [1913] 1 Ch.57 42

Burns Philp & Co -v- Nelson & Robertson 22

Pty Ltd [1958] 1 Lloyd's Rep. 342

Carlsen & ors -v- Prime Minister Poul 50

Nyrup Rasmussen, Danish Supreme Court,

Case no 1 361/1997, 1998

Chief Adjudication Officer -v- Foster 47

[1993] 1 AC

Customs & Excise Commissioners -v- Cure 44

and Deely Ltd [1962] 1 QB 340

Darnel’s Case (1627) 3 St.Tr.1 85

The Dart [1893] P 33 18

Director of Public Prosecutions -v- 47,53

Hutchinson [1990] 2 AC 783

Re Douglas [1905] 1 Ch.279 18

Re Drummond [1891] 1 Ch.524 18

Duke –v- GEC Reliance Ltd. [1988] WLR 359 12

Ellen Street Estates –v- Minister of Health [1934] 1 KB 590 13

Farrall -v- Department of Transport 30,32

[1983] RTR 279

Goodwin -v- Phillips (1907) 7 CLR 1 17

Hyde Park Residence Ltd -v- Secretary of 23

The Regions, The Times, 14th March 2000

London & Clydeside Estates Ltd -v- 48

Aberdeen District Council [1980] 1 WLR 182

M -v- Home Office [1994] 1 AC 377 51,52

Maclaine Watson -v- International Tin 32

Council [1990] 2 AC 418

Minister of Health -v- The King ex p Yaffe 13,14

[1931] AC 494 15,41

Norman –v- Golder (1944) 171 LT 369 12

O'Reilly -v- Mackman [1983] 2 AC 237 58

The Parlement Belge (1879) 4 PD 129 32

Pickstone -v- Freemans plc [1989] AC 66 22

Prince's Case (1606) 8 Co.Rep.1a 42

Prosecutor –v- Furundzija (ICT, Case No. 77

IT-95-17/1-T 10)

Raymond-v- Honey [1983] AC 1 44

Magistrate ex p General Pinochet Ugarte

[2000] 1 AC 147

R -v- Cumberworth (1989) 89 Cr. App. R. 187 56

R -v- Customs & Excise Commissioners ex p 44

Hedges and Butler Ltd [1986] 2 All ER 164

R v- Davis (1783) 1 Leach 271 18

R -v- Harden (1852) 22 LJQB 299 18

R -v- Immigration Appeal Tribunal ex p 44

Manshoora Begum [1986] Imm AR 385

R -v- same ex p Bakhtaur Singh [1986] Imm 47

AR 352

R -v- Home Secretary ex p Muboyayi [1992] 60

1 QB 244

R -v- Secretary of State for Social Security 23

ex p Britnell [1991] 1 WLR 198

R -v- same, ex p Joint Council for the 23

Welfare of Immigrants [1997] 1 WLR 275

R -v- Secretary of State for Transport ex p 51

Factortame Ltd (No 1) [1990] 2 AC 85, (No 2)

[1991] 1 AC 603, both referred to passim

Salomon -v- Customs and Excise Commissioners 22

[1967] 2 QB 116

State –v- Superior Court of King County (1910) 60.

Wash.370, 111 Pac.233 15

Vauxhall Estates Ltd. –v- Liverpool Corporation [1932] 1 KB 733 13

Wandsorth LBC -v- Winder [1985] AC 461 59

Warburton –v- Loveland (1832) 2 D & Cl 480

Whitehead -v- Smithers (1877) 2 CPD 553