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Queen's Bench Division |
Thoburn v Sunderland City Council |
Hunt v Hackney London Borough Council |
Harman and another v Cornwall County Council |
Collins v Sutton London Borough Council |
[2002] EWHC 195 (Admin) |
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Statute - Repeal - Implied repeal - Statute incorporating European Community rights and obligations into United Kingdom law - Whether constitutional statute - Whether susceptible to implied repeal - Statute conferring power to amend primary legislation by means of subordinate legislation - Whether power impliedly partially repealed by later statute - Subordinate legislation amending later statute pursuant to power - Whether ultra vires - European Communities Act 1972 (c 68), s. 2(2)(4) - Weights and Measures Act 1985 (c 72), ss. 1, 8 - Weights and Measures (Metrication Amendments) Regulations 1994 (SI 1994/1851) - Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 (SI 1994/2866) - Units of Measurement Regulations 1994 (SI 1994/2867) - Price Marking Order 1999 (SI 1999/3042) |
The Units of Measurement Regulations 1994, which were stated to be made in the exercise of powers conferred by section 2(2) and (4) of the European Communities Act 19721, amended section 1 of the Weights and Measures Act 19852 so as no longer to permit the use of imperial units of measurement for purposes of trade other than as supplementary indications to metric units. The Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, which was stated to be made in the exercise of powers conferred by section 8(6) of the 1985 Act, amended section 8 of that Act so as to forbid the use of the pound as a primary indicator of weight for the sale of goods loose from bulk after 1 January 2000. The Weights and Measures (Metrication Amendments) Regulations 1994 amended paragraph 16(1) of the Weighing Equipment (Non-automatic Weighing Machines) Regulations 1988 so as to provide that units of measurement marked on non-automatic machines first passed as fit for use for trade on or after 30 December 1992 should be marked in metric units, although imperial units could be given as a supplementary indication. Paragraph 5(1) and (2) of the Price Marking Order 1999, which was stated to be made in the exercise of powers conferred by section 4 of the Prices Act 1974, obliged traders to indicate to their customers the unit price in relation to any product sold from bulk, "unit price" being defined by paragraph 1(2) in metric terms. The various Orders and regulations were intended to implement the amendments made by Council Directive 89/617/EEC to Directive 80/181/EEC3 relating to the use of units of measurement. The defendants in the first three cases and the claimant in the fourth case were food traders. The defendant in the first case was charged with two offences of having in his possession for use for trade non-automatic weighing machines which were not calibrated in metric units. The defendants in the second and third cases |
1 European Communities Act 1972, s. 2: see post, para 9. |
2 Weights and Measures Act 1985, as amended, s. 1: see post, para 28. |
3 Council Directive 80/181/EEC, as amended: see post, paras 19, 21-22. |
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were charged with offences of failing to indicate a unit price per kilogram for various goods. All the defendants pleaded not guilty to the charges. The claimant in the fourth case appealed against conditions imposed upon the renewal of his street trading licence requiring him to sell and weigh goods by reference to the metric system. The facts in all of the cases were undisputed. However, the defendants in the first three cases denied that any offences had been committed and the claimant in the fourth case contended that the local authority had acted unlawfully in imposing the conditions, on the ground that the laws which authorised the relevant offences and gave the power to the local authority to make the relevant conditions were unlawful and invalid since section 1 of the 1985 Act as originally enacted, which permitted the continued use of imperial units of measurement, had impliedly repealed section 2(2) of the 1972 Act to the extent that it empowered the making of subordinate legislation which would be inconsistent with that section. The defendants in the first three cases were convicted of all charges and the claimant's appeal in the fourth case was dismissed. |
On appeals by way of case stated-- |
Held, dismissing the appeals, that in determining whether the repeal of a constitutional statute, i e a statute which conditioned the legal relationship between citizen and state in some general, overarching manner or enlarged or diminished the scope of what were regarded as fundamental constitutional rights, or whether the abrogation of a fundamental right had been effected by statute the court would ask whether it had been shown that the legislature's actual intention, and not its imputed, constructive or presumed intention, was to effect the repeal or abrogation; that that test could only be met by express words in a later statute or by words so specific that the inference of an actual determination to effect the result was irresistible; that the ordinary rule of implied repeal did not satisfy that test, and therefore had no application to constitutional statutes; that the 1972 Act was clearly a constitutional statute since it incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law; that, therefore, section 1 of the 1985 Act did not by implication partially repeal section 2(2) of the 1972 Act; that Parliament could delegate the power to amend primary legislation, and it was inescapable that by section 2(2) of the 1972 Act read with section 2(4) it had done so and clearly contemplated provision being made to give effect to Community directives; and that, accordingly, the various Orders and regulations validly amended the 1985 Act (post, paras 62, 63, 64, 68, 69, 72, 73, 83). |
Per curiam. General words in a statute cannot be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill (post, paras 63, 83). |
The following cases are referred to in the judgment of Laws LJ: |
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; [1993] 2 WLR 449; [1993] 1 All ER 1011, HL(E) |
Duke v Reliance Systems Ltd [1988] AC 618; [1988] 2 WLR 359; [1988] 1 All ER 626, HL(E) |
Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, CA |
Felixstowe Dock and Railway Co v British Transport Docks Board [1976] 2 Lloyd's Rep 656, CA |
Inland Revenue Comrs v Collco Dealings Ltd [1962] AC 1; [1961] 2 WLR 401; [1961] 1 All ER 762, HL(E) |
Macarthys Ltd v Smith [1979] 1 WLR 1189n; [1979] ICR 785; [1979] 3 All ER 325, CA |
NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse administratie der belastingen (Case 26/62) [1963] ECR 1, ECJ |
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Pepper v Hart [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42, HL(E) |
Pickstone v Freemans plc [1989] AC 66; [1988] 3 WLR 265; [1988] 2 All ER 803, HL(E) |
R v Lord Chancellor, Ex p Witham [1998] QB 575; [1998] 2 WLR 849; [1997] 2 All ER 779, DC |
R v Secretary of State for Employment, Ex p Equal Opportunities Commission [1995] 1 AC 1; [1994] 2 WLR 409; [1994] 1 All ER 910, HL(E) |
R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198; [1993] 3 WLR 1125; [1993] 4 All ER 539, CA |
R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539; [1997] 3 WLR 492; [1997] 3 All ER 577, HL(E) |
R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; [1999] 3 WLR 328; [1999] 3 All ER 400, HL(E) |
R v Secretary of State for Transport, Ex p Factortame Ltd [1990] 2 AC 85; [1989] 2 WLR 997; [1989] 2 All ER 692, HL(E) |
R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) (Case C-213/89) [1991] 1 AC 603; [1990] 3 WLR 818; [1990] ECR I-2433; [1991] 1 All ER 70, ECJ and HL(E) |
R (Orange Personal Communications Ltd) v Secretary of State for Trade and Industry [2001] 3 CMLR 781 |
Rayner (J H) (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; [1989] 3 WLR 969; [1989] 3 All ER 523, HL(E) |
The following additional cases were cited in argument: |
Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629, ECJ |
Minister of Health v The King (on the Prosecution of Yaffe) [1931] AC 494, HL(E) |
R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Rees-Mogg [1994] QB 552; [1994] 2 WLR 115; [1994] 1 All ER 457, DC |
R v Secretary of State for Social Security, Ex p Britnell [1991] 1 WLR 198; [1991] 2 All ER 726, HL(E) |
R v Secretary of State for Trade and Industry, Ex p UNISON [1996] ICR 1003, DC |
Webb v Emo Air Cargo (UK) Ltd [1993] 1 WLR 49; [1992] 4 All ER 929, HL(E) |
The following additional cases, although not cited, were referred to in the skeleton arguments: |
B v Secretary of State for the Home Department [2000] 2 CMLR 1086, CA |
Baker v The Queen [1975] AC 774; [1975] 3 WLR 113; [1975] 3 All ER 55, PC |
Barrs v Bethell [1982] Ch 294; [1981] 3 WLR 874; [1982] 1 All ER 106 |
Blackburn v Attorney General [1971] 1 WLR 1037; [1971] 2 All ER 1380, CA |
Central Hudson Gas and Electricity Corpn v Public Service Commission of New York (1980) 447 US 557 |
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Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case 61/81) [1982] ICR 578; [1982] ECR 2601, ECJ |
Commission of the European Communities v United Kingdom(Case C-382/92) [1994] ICR 664; [1994] ECR I-2435, ECJ |
Davis v Johnson [1979] AC 264; [1978] 2 WLR 553; [1978] 1 All ER 1132, HL(E) |
Effort Shipping Co Ltd v Linden Management SA [1998] AC 605; [1998] 2 WLR 206; [1998] 1 All ER 495, HL(E) |
Foto-Frost v Hauptzollamt LŸbeck-Ost (Case 314/85) [1987] ECR 4199, ECJ |
Granaria BV v Hoofdproduktschap voor Akkerbouwprodukten(Case 101/78) [1979] ECR 623, ECJ |
Hetherington, decd, In re [1990] Ch 1; [1989] 2 WLR 1094; [1989] 2 All ER 129 |
Hyde Park Residence Ltd v Secretary of State for the Environment, Transport and the Regions (2000) 80 P & CR 419, CA |
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fŸr Getreide und Futtermittel (Case 11/70) [1970] ECR 1125, ECJ |
M v Home Office [1994] 1 AC 377; [1993] 3 WLR 433; [1993] 3 All ER 537, HL(E) |
Manuel v Attorney General [1983] Ch 77; [1982] 3 WLR 821; [1982] 3 All ER 822, Sir Robert Megarry V-C and CA; (pet dis) [1983] 1 WLR 1, HL(E) |
Marr (Pauline) (A Bankrupt), In re [1990] Ch 773; [1990] 2 WLR 1264; [1990] 2 All ER 880, CA |
National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397; [1975] 2 WLR 222; [1974] 3 All ER 1010, CA |
R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147; [1999] 2 WLR 827; [1999] 2 All ER 97, HL(E) |
R v Her Majesty's Treasury, Ex p Smedley [1985] QB 657; [1985] 2 WLR 576; [1985] 1 All ER 589, CA |
R v Immigration Officer, Ex p Chan [1992] 1 WLR 541; [1992] 2 All ER 738, CA |
R v Lord Chancellor, Ex p Child Poverty Action Group [1999] 1 WLR 347; [1998] 2 All ER 755 |
R v Recorder of Leicester, Ex p Wood [1947] KB 726; [1947] 1 All ER 928, DC |
R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER 720, HL(E) |
R v Secretary of State for the Home Department, Ex p Ku [1995] QB 364; [1995] 2 WLR 589; [1995] 2 All ER 891, CA |
R v Secretary of State for Transport, Ex p Factortame Ltd (No 5) [1999] 2 All ER 640n, CA; [2000] 1 AC 524; [1999] 3 WLR 1062; [1999] 4 All ER 906, HL(E) |
R v West Sussex Quarter Sessions, Ex p Albert & Maud Johnson Trust Ltd [1974] QB 24; [1973] 3 WLR 149; [1973] 3 All ER 289, CA |
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R (Isiko) v Secretary of State for the Home Department [2001] Imm AR 291, CA |
R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955; [2001] 2 WLR 1674, CA |
R (Samaroo) v Secretary of State for the Home Department [2001] Imm AR 324 |
Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1920] 2 KB 487, CA; [1921] 2 AC 465, HL(E) |
Read v J Lyons & Co Ltd [1947] AC 156; [1946] 2 All ER 471, HL(E) |
Salomon v Customs and Excise Comrs [1967] 2 QB 116; [1966] 3 WLR 1223; [1966] 3 All ER 871, CA |
Thamesdown Borough Council v Goonery (unreported) 13 February 1995; Court of Appeal (Civil Division) Transcript No 147 of 1995, CA |
Virginia State Pharmacy Board v Virginia Citizens Consumer Council (1976) 425 US 748 |
West Midland Baptist (Trust) Association (Inc) v Birmingham Corpn [1970] AC 874; [1969] 3 WLR 389; [1969] 3 All ER 172, HL(E) |
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER 293, CA |
Thoburn v Sunderland City Council |
CASE STATED by District Judge Bruce Morgan sitting at Sunderland Magistrates' Court |
On 29 September 2000 two informations were laid by Sunderland City Council alleging that on 4 July 2000 the defendant, Steven Thoburn, committed two offences contrary to section 11(2) of the Weights and Measures Act 1985 by having in his possession for use for trade a non-automatic weighing machine which did not bear a stamp indicating that it had been passed by an inspector or approved verifier as fit for such use which was not defaced otherwise than by reason of fair wear and tear. The two summonses were framed in identical language but related to different weighing machines. |
The district judge heard the informations on 15, 16 and 17 January and 1 and 2 March 2001, and gave judgment on 9 April 2001. No evidence was called. The parties agreed the facts and the defendant filed an admission under section 10 of the Criminal Justice Act 1967. |
It was agreed that the defendant was a greengrocer who possessed scales with which to weigh his customers' purchases. On 16 February 2000 he was visited and warned by a principal trading standards officer of the City of Sunderland that his scales were not correctly calibrated in that they did not measure in metric units. On 31 March he was visited by another or the same representative of the City of Sunderland who obliterated the stamps on his scales because they were still not calibrated to measure in metric units. Because of that act of obliteration he informed the defendant that the scales were no longer fit for use for trade. On 2 June an inspector from the City of Sunderland visited the premises and warned the defendant of the legal consequences of using unstamped weighing machines. From 16 February to |
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4 July 2000 the defendant continued to use his scales, which were only calibrated to measure by the imperial pound and ounces. On 4 July a consumer protection officer purchased a bunch of bananas for 34p which were priced at 25p per imperial pound and were weighed upon one of the scales which had had its stamp obliterated on 31 March 2000. The two sets of scales were seized later that day, when a representative of the City of Sunderland visited the premises accompanied by two police officers. |
The district judge was of the opinion that the matters were proved. The defendant applied to the district judge to state a case for the opinion of the High Court. It was agreed between the parties that the full written judgment prepared by the district judge would take the place of the case stated. Since the parties were unable to agree between themselves the questions to be asked of the High Court, the district judge indicated which of the draft questions submitted by the parties he found to be relevant. In view of the Divisional Court's comments with regard to those questions (see post, para 36), they are not set out herein. |
Hunt v Hackney London Borough Council |
CASE STATED by District Judge Alan Baldwin sitting at Thames Magistrates' Court |
By informations laid by Hackney London Borough Council the defendant, Colin Hunt, was charged with six offences of failure to indicate a unit price per kilogram for certain goods contrary to article 5 of the Price Marking Order 1999 and section 4 of the Prices Act 1974, and four offences of selling certain goods by weight and delivering a lesser quantity than that which corresponded with the price charged contrary to section 28(1) of the Weights and Measures Act 1985. |
The district judge heard the informations on 20 June 2001. The defendant entered not guilty pleas to all the informations. |
The facts were undisputed. On 22 September 2000 Ms Josile Munro, one of the council's principal trading standards officers, instructed Theo Lamptey, one of the council's commercial standards officers, to attend at the defendant's fruit and vegetable stall at 29 Ridley Road, London and conduct a test purchase. Mr Lamptey did so and purchased three sweet potatoes displayed for sale at 90p per pound. He was informed that the purchase price was £2.45 and paid for the products. He also purchased two pieces of plantain displayed for sale at 39p per pound. He was informed that the purchase price was 65p and paid for the products. Having purchased the products he returned to the office and weighed the sweet potatoes and plantain on a weighing scale. The weight of the plantain was determined at 644.2 g and the weight of the sweet potatoes was determined at 110.1 g. The weight purported to be sold was deficient by 8%. On 26 September 2000 Ms Munro went to the stall accompanied by Mr Lamptey and Mr Dhakshinamurthy Balakrishnan. On arriving at the stall, she purchased two pieces of cassava displayed for sale at 40p per pound. She was informed by the assistant that the purchase price was 80p and paid for the products. She then weighed the cassava, which was determined at 741.7 g. The weight purported to be sold was deficient by 22.35%. On 26 September Mr Balakrishnan, a trading standards officer, attended at the defendant's stall and purchased plantain displayed for sale at 39p per pound. He was |
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informed that the purchase price was 80p and paid for the products. He then weighed the plantain, which was determined at 790.5 g. The weight purported to be sold was deficient by 17.7%. On 26 September 2000 Mr Lamptey returned to the stall accompanied Ms Munro and Mr Balakrishnan. On arrival he purchased sweet potatoes which were displayed for sale at 75p per pound. The defendant weighed the products and then informed him the price was £1.46. Mr Lamptey then weighed the sweet potatoes which were determined at 773.8 g. The weight purported to be sold was deficient by 14%. |
The district judge was of the opinion that, as far as the unit price charges were concerned, he did not accept the constitutional and other arguments put forward by the defence. As far as the short weight charges were concerned, he found that there had been no abuse of process; he was of the opinion that the prosecution had been properly brought by the local authority. Accordingly, he convicted the defendant on each of the informations. |
The defendant challenged the validity of the secondary legislation under which he had been convicted and requested the district judge to state a case for the opinion of the High Court. The questions for the opinion of the court were (a) whether the Units of Measurement Regulations 1994 were valid, (b) whether the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 was valid, (c) whether the Price Marking Order 1999 was intra vires the Price Marking Act 1974, (d) whether it was unlawful for the defendant to display for sale produce indicating only a unit price per imperial pound, (e) whether it was open for the district judge to convict the defendant of the unit price offences and (f) whether it was open to him to convict the defendant of the short weight offences. |
Harman and another v Cornwall County Council |
CASE STATED by Bodmin justices |
On 30 April 2001 informations were preferred by Cornwall County Council against the defendants, Julian Lawrence Harman and John Frederick Dove. The informations preferred against the defendant Harman alleged that he (i) on 31 January 2001 at A1 Fruiterers, Market Place, Camelford in the County of Cornwall did as a trader by displaying a sign marked "Brussels sprouts 39p per pound" indicate that a product, namely Brussels sprouts, was or might be for sale to a consumer without there being indicated for the product a unit price as defined by article 1 to the Price Marking Order 1999 and as required by article 5(1) of that Order in that the price indicated for the product was not indicated by reference to a kilogram contrary to paragraph 5(1) of the Schedule to the Prices Act 1974, (ii) on 31 January 2001 at A1 Fruiterers, Market Place, Camelford did as a trader by displaying a sign marked "Granny Smith apples 45p per pound" indicate that a product, namely Granny Smith apples, was or might be for sale to a consumer without there being indicated for the product a unit price as defined by article 1 of the 1999 Order and as required by article 5(1) of that Order in that the price indicated for the product was not indicated by reference to a kilogram contrary to paragraph 5(1) of the Schedule to the 1974 Act, (iii) on 31 January 2001 in the course of business at Camelford did use for trade for the sale of Brussels sprouts by weight a unit of |
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measurement, namely a pound, which was not included in Parts I to V of Schedule 1 to the Weights and Measures Act 1985 as amended by the Units of Measurement Regulations 1994 contrary to section 8(1)(a) and(4) of the Act, (iv) on 31 January 2001 in the course of business at Camelford did use for trade for the sale of Granny Smith apples by weight a unit of measurement, namely a pound, which was not included in Parts I to V of Schedule 1 to the 1985 Act as amended by the 1994 Regulations contrary to section 8(1)(a) and (4) of the Act, and (v) on 31 January 2001 did wilfully obstruct Sharon Foster of Cornwall County Council, a duly authorised officer of the local weights and measures authority, in the course of her duty by deliberately preventing her removing price tickets which were required as evidence of an alleged offence under the 1974 Act contrary to paragraph 9(3)(a) of the Schedule to that Act. The informations preferred against the defendant Dove alleged that he (i) on 31 January 2001 at The Fish Shop, Market Place, Camelford in the County of Cornwall did as a trader by displaying a sign marked "pollack £3.28 per lb" indicate that a product, namely pollack, was or might be for sale to a consumer without there being indicated for the produce a unit price as defined by article 1 to the Price Marking Order 1999 and as required by article 5(1) of that Order in that the price indicated for the product was not indicated by reference to a kilogram contrary to paragraph 5(1) of the Schedule to the Prices Act 1974, (ii) on 31 January 2001 at The Fish Shop, Market Place, Camelford did as a trader by displaying a sign marked "mackerel £1.54 per lb" indicate that a product, namely mackerel, was or might be for sale to a consumer without there being indicated for the produce a unit price as defined by article 1 of the 1999 Order and as required by article 5(1) of that Order in that the price indicated for the product was not indicated by reference to a kilogram contrary to paragraph 5(1) of the Schedule to the 1974 Act, (iii) on 31 January 2001 in the course of business at Camelford did use for trade for the sale of pollack by weight a unit of measurement, namely a pound, which was not included in Parts I to V of Schedule 1 to the Weights and Measures Act 1985 as amended by the Units of Measurement Regulations 1994 contrary to section 8(1)(a) and(4) of that Act, (iv) on 31 January 2001 in the course of business at Camelford did use for trade for the sale of mackerel by weight a unit of measurement, namely a pound, which was not included in Parts I to V of Schedule 1 to the 1985 Act as amended by the 1994 Regulations contrary to section 8(1)(a) and (4) of that Act, and (v) on 31 January 2001 did wilfully obstruct Sharon Foster of Cornwall County Council, a duly authorised officer of the local weights and measures authority, in the course of her duty by deliberately preventing her removing price tickets which were required as evidence of an alleged offence under the 1974 Act contrary to paragraph 9(3)(a) of the Schedule to that Act. |
The justices heard the informations on 17 August 2001. The following agreed facts were submitted to the justices by way of admissions under section 10 to the Criminal Justice Act 1967 and were not in dispute. The defendant Harman admitted that at all material times and in particular on 31 January 2001 he sold fruit and vegetables including Granny Smith apples and Brussels sprouts by the imperial pound, and priced the apples and sprouts by the imperial pound. He also admitted that he refused to hand over price tickets marked in imperial to trading standards officers when requested to do so. The defendant Dove admitted that at all material times |
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and in particular on 31 January 2001 he both priced and sold mackerel and pollack by the imperial pound and that he refused to hand over price tickets marked in imperial when requested to do so by trading standards officers. For the avoidance of doubt each and every element of the actus reus of each offence alleged by the prosecution was admitted by each defendant. The case proceeded by way of submissions of law. |
The questions for the opinion of the High Court were (a) it being common ground before the justices that Parliament provided by the Weights and Measures Act 1985 for both the imperial and the metric systems to continue to operate side by side, were they right to apply that Act as purportedly amended by ministers in 1994? (b) In particular, were the Units of Measurement Regulations 1994 and the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 intra vires the alleged enabling powers in section 2 of the European Communities Act 1972 and section 8(6) of the Weights and Measures Act 1985 and valid? (c) Was the Price Marking Order 1999 intra vires section 4 of the Prices Act 1974, which made no mention of metrication and on ordinary principles was subject to the 1985 Act? (d) Were the trading standards officers acting in execution of their duty in seeking to seize imperial price tickets in the absence of any dishonesty or improper marking of the tickets other than the fact that they were marked in imperial? (e) Was it lawful to sell Brussels sprouts, mackerel and other such items by the pound? |
Collins v Sutton London Borough Council |
CASE STATED by Sutton justices |
On 29 September 2000 the appellant, Peter Collins, applied for a summons to be issued under section 30(1)(a) of the London Local Authorities Act 1990 (c vii) against the respondent, the trading standards department of Sutton London Borough Council, in respect of its decision on 31 August 2000 to impose special conditions on the renewal of the street trading licence of the appellant, which was due to expire on 31 March 2001. The special conditions imposed on the licence were that (i) the goods permitted to be sold under the terms of the licence would be fruit (excluding soft fruit) and vegetables, (ii) the goods sold under the terms of the licence would be sold by reference to number or by net weight; any goods sold by net weight would be by reference to the metric system only (i e by kilogram or grams), (iii) any weighing instrument or weights used in determining the weight of such goods would be calibrated in metric only (i e in kilogram), (iv) any reference to the price of the goods would be by reference to the unit cost (e g 10p each) or by reference to metric weight (e g 99p per kg or 10p per |
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100 g); prices might also be indicated, in addition to the reference to metric weight, by reference to imperial weight (e g 22p per kg/10p per lb). |
The justices stated a case for the opinion of the High Court. The questions of law on which the opinion of the court was sought were: (a) were the justices correct in deciding that the appellant's rights under article 10 of the Human Rights Act 1998 had not been infringed? and (b) were they correct in deciding that the 1994 Order and the 1994 Regulations were valid and therefore the council was not acting ultra vires by imposing the special conditions on the appellant's street trading licence that he sold fruit and vegetables in metric? |
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British Transport Docks Board [1976] 2 Lloyd's Rep 656 and Farrall v Department of Transport [1983] RTR 279. |
Eleanor Sharpston QC and Philip Moser for Sunderland City Council. There can have been no implied repeal of the European Community Act 1972 because there is no inconsistency, implied or express, between the 1985 Act and the Community law obligations at the time of its passing. The Weights and Measures Act 1985 is a pure consolidation Act and it did not change the pre-existing law. Parliament in enacting the 1985 Act merely permitted the parallel use of imperial and metric units which was at that time permitted under European Community law. |
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Simon Butler for Hackney London Borough Council and Cornwall County Council and Fiona Darroch for Sutton London Borough Council adopted the submissions made on behalf of Sunderland City Council. |
Shrimpton replied. |
Cur adv vult |
18 February 2002. The following judgments were handed down. |
LAWS LJ |
Introductory |
The facts |
Thoburn |
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Judge Morgan in the Sunderland Magistrates' Court over five days in January and March 2001. He pleaded not guilty to both charges. He was represented by Mr Shrimpton, and the prosecutor, the Sunderland City Council, by Miss Sharpston, as they have been represented before us. There was no dispute about the facts. The case for the defence effectively consisted in the submissions which Mr Shrimpton has addressed to us on these appeals. On 9 April 2001 the district judge delivered a judgment to whose rigour and fullness I would pay tribute. He rejected Mr Shrimpton's arguments and convicted Mr Thoburn. |
Hunt |
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He also rejected the argument as to abuse of the process of the court, and so convicted Mr Hunt upon all the charges which he faced. He made concurrent orders of conditional discharge for 12 months for each of the offences. |
Harman and Dove |
Collins |
"(i) The goods permitted to be sold under the terms of the licence will be fruit (excluding soft fruit) and vegetables. (ii) The goods sold under the terms of this licence will be sold by reference to number or by net weight. Any goods sold by net weight will be by reference to the metric system only (i e by kg or grams). (iii) Any weighing instrument or weights used in determining the weight of such goods will be calibrated in metric only (i e in kg). (iv) Any reference to the price of the goods will be by reference to the unit cost (e g 10p each) or by reference to metric weight (e g 99p per kg or 10p per 100 g). Price may also be indicated, in addition to the reference to metric weight, by reference to imperial weight (e g 22p per kg/10p per lb)." |
Mr Collins objected to these conditions and appealed against them, by way of complaint to the magistrates' court under section 30(1)(a) of the London Local Authorities Act 1990. His appeal was heard at the Sutton Magistrates' Court from 9 to 13 July 2001. One of his arguments was based on article 10 of the European Convention for the Protection of Human |
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Rights and Fundamental Freedoms. The justices also had before them, as I have said, District Judge Morgan's decision in Mr Thoburn's case. They rejected all the arguments advanced on Mr Collins's behalf and dismissed his appeal. |
The legislation |
The European Communities Act 1972 |
"2(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies. |
"(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated minister or department may by regulations, make provision--(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid." |
"(4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be |
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construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council and regulations." |
"3(1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto)." |
"SCHEDULE 2 |
"1(1) The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power--(a) to make any provision imposing or increasing taxation; or (b) to make any provision taking effect from a date earlier than that of the making of the instrument containing the provision; or (c) to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal; or (d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day. |
"(2) Sub-paragraph (1)(c) above shall not be taken to preclude the modification of a power to legislate conferred otherwise than under section 2(2), or the extension of any such power to purposes of the like nature as those for which it was conferred; and a power to give directions as to matters of administration is not to be regarded as a power to legislate within the meaning of sub-paragraph (1)(c). |
"2(1) Subject to paragraph 3 below, where a provision contained in any section of this Act confers power to make regulations (otherwise than by modification or extension of an existing power), the power shall be exercisable by statutory instrument. |
"(2) Any statutory instrument containing an Order in Council or regulations made in the exercise of a power so conferred, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House." |
Weights and measures |
"The yard or the metre shall be the unit of measurement of length and the pound or the kilogramme shall be the unit of measurement of mass by reference to which any measurement involving a measurement of length |
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or mass shall be made in the United Kingdom; and--(a) the yard shall be 0.9144 metre exactly; (b) the pound shall be 0.453 592 37 kilogramme exactly." |
Section 8(2): |
"the Board"--viz the Board of Trade--"may, if they think fit in the case of any recommendation of the commission,"--viz the Commission on Units and Standards of Measurement established by section 7--"by order make such provision as appears to the Board to be necessary to give effect to that recommendation, and any such order may amend, extend or repeal any provision of this Act or any instrument made thereunder; but, without prejudice to section 10(10) of this Act, no order under this subsection shall add or remove any unit of measurement to or from any of Parts I to V of Schedule 1 to this Act." |
Schedule 1 to the 1963 Act gives a series of definitions of units of measurement under five headings (Parts I to V): length, area, volume, capacity, and mass or weight. Within each heading both imperial and metric units are defined. Thus for example under Part I a mile is defined as 1,760 yards, a yard is defined as 0.9144 metre, and a metre "shall have the meaning from time to time assigned by order by the Board, being the meaning appearing to the Board to reproduce in English the international definition of the metre in force at the date of the making of the order". |
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force of its very sovereignty, Parliament may delegate the power of amendment or repeal. A provision by which it does so is known as a "Henry VIII" clause, as it has been said "in disrespectful commemoration of Henry VIII's tendency to absolutism". I doubt whether this is a just memorial to his late Majesty, who reigned 100 years before the Civil War and longer yet before the establishment of parliamentary legislative supremacy in our constitutional law. But the label is old and convenient. In the last century constitutional lawyers and others expressed a wary suspicion of the use of Henry VIII clauses, because they transfer legislative power to the executive branch of government. As I shall show, it is central to the argument advanced by Mr Shrimpton in this case that the lawful use of such power is subject to very stringent limitations, which have been exceeded. But I must complete this recital of the relevant legislation. |
"(1) The yard or the metre shall be the unit of measurement of length and the pound or the kilogram shall be the unit of measurement of mass by reference to which any measurement involving a measurement of length or mass shall be made in the United Kingdom; and--(a) the yard shall be 0.9144 metre exactly; (b) the pound shall be 0.453 592 37 kilogram exactly. |
"(2) Schedule 1 to this Act shall have effect for defining for the purposes of measurements falling to be made in the United Kingdom the units of measurement set out in that Schedule; and for the purposes of any measurement of weight falling to be so made, the weight of any thing may be expressed, by reference to the units of measurement set out in Part V of that Schedule, in the same terms as its mass. |
"(3) Subject to subsection (4) below, the Secretary of State may by order amend Schedule 1 to this Act by adding to or removing from Parts I to VI of that Schedule any unit of measurement of length, of area, of volume, of capacity, or of mass or weight, as the case may be. |
"(4) An order under subsection (3) above shall not remove--(a) from Part I of Schedule 1, the mile, foot or inch, or (b) from Part IV of that Schedule, the gallon or pint, but this subsection is without prejudice to section 8(6)(b) below." |
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"(1) No person shall--(a) use for trade any unit of measurement which is not included in Parts I to V of Schedule 1 to this Act, or (b) use for trade, or have in his possession for use for trade, any linear, square, cubic or capacity measure which is not included in Schedule 3 to this Act, or any weight which is not so included. |
"(2) No person shall use for trade--(a) the ounce troy, except for the purposes of transactions in, or in articles made from, gold, silver or other precious metals, including transactions in gold or silver thread, lace or fringe, or (b) the carat (metric), except for the purposes of transactions in precious stones or pearls, or (c) a capacity measure of 125, 150 or 175 millilitres, except for the purposes of transactions in intoxicating liquor." |
"(4) A person who contravenes subsection (1) or (2) above shall be guilty of an offence, and any measure or weight used, or in any person's possession for use, in contravention of that subsection shall be liable to be forfeited." |
"(6) The Secretary of State may by order--(a) amend Schedule 3 to this Act by adding to or removing from it any linear, square, cubic or capacity measure, or any weight; (b) add to, vary or remove from subsection (2) above any restriction on the cases or circumstances in which, or the conditions subject to which, a unit of measurement, measure or weight may be used for trade or possessed for use for trade. |
"(7) An order under subsection (6) above may contain such transitional or other supplemental or incidental provisions as appear to the Secretary of State expedient. |
"(8) In this section 'unit of measurement' means a unit of measurement of length, area, volume, capacity, mass or weight." |
"(1) The provisions of this section shall apply to the use for trade of weighing or measuring equipment of such classes or descriptions as may be prescribed. |
"(2) No person shall use any article for trade as equipment to which this section applies, or have any article in his possession for such use, unless that article, or equipment to which this section applies in which that article is incorporated or to the operation of which the use of that article is incidental--(a) has been passed by an inspector as fit for such use; and (b) except as otherwise expressly provided by or under this Act, bears a stamp indicating that it has been so passed which remains undefaced otherwise than by reason of fair wear and tear. |
"(3) If any person contravenes subsection (2) above, he shall be guilty of an offence and any article in respect of which the offence was committed shall be liable to be forfeited." |
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Non-automatic weighing machines, such as were used by Mr Thoburn, were prescribed for the purposes of section 11 by the Weighing Equipment (Non-automatic Weighing Machines) Regulations 1988 (SI 1988/876). These Regulations were subsequently amended notably for the purposes of this case by the Weights and Measures (Metrication Amendments) Regulations 1994, to which I will refer later in this judgment. |
18 Schedules 1 and 3 to the 1985 Act are the respective analogues of Schedules 1 and 3 to the 1963 Act. |
"Article 1 |
"The legal units of measurement within the meaning of this Directive which must be used for expressing quantities shall be: (a) those listed in Chapter I of the Annex; (b) those listed in Chapter II of the Annex, until a date to be fixed by the member states; this date may not be later than 31 December 1985; (c) those listed in Chapter III of the Annex only in those member states where they were authorised on 21 April 1973 and until a date to be fixed by those member states; this date may not be later than a date to be set by the Council before 31 December 1989 on the basis of article 100 of the Treaty." |
"Article 3 |
"1. For the purposes of this Directive 'supplementary indication' means one or more indications of quantity expressed in units of measurement not contained in Chapter I of the Annex accompanying an indication of quantity expressed in a unit contained in that Chapter. |
"2. The use of supplementary indications shall be authorised until 31 December 1989. |
"3. However, member states may require that measuring instruments bear indications of quantity in a single legal unit of measurement. |
"4. The indication expressed in a unit of measurement listed in Chapter I shall predominate. In particular, the indications expressed in units of measurement not listed in Chapter I shall be expressed in characters no larger than those of the corresponding indication in units listed in Chapter I. |
"5. The use of supplementary indications may be extended after 31 December 1989." |
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"(b) those listed in Chapter II of the Annex only in those member states where they were authorised on 21 April 1973 and until a date to be fixed by those states; (c) those listed in Chapter III of the Annex only in those member states where they were authorised on 21 April 1973 and until a date to be fixed by those states. This date may not be later than 31 December 1994; (d) those listed in Chapter IV of the Annex only in those member states where they were authorised on 21 April 1973 and until a date to be fixed by those states. This date may not be later than 31 December 1999." |
Chapter IV lists "legal units of measurement referred to in article 1(d). Permitted in specialised fields only". One item in the chapter is stated to be "goods sold loose in bulk", and the legal units of measurement applicable to them are specified as pounds and ounces. We are particularly concerned with Chapter IV, since on the facts all four appeals before us are to do with goods sold in bulk. Appended to Chapter IV was a footnote in like terms to that originally appended to Chapter III, which I have set out above at paragraph 20. In it "article 1(c)" was replaced by "article 1(d)" and "Chapter III" was replaced by "this Chapter". Otherwise its words were the same as those of the original footnote. |
22 Article 3 of the Metrication Directive was amended by Directive 89/617/EEC so as to substitute "31 December 1999" for "31 December 1989" in paragraph 2, and to delete paragraph 5. |
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effect of section 1(1) read with section 8 and Schedules 1 and 3. I would thus reject the submission made by Mr Moser, junior counsel for the Sunderland City Council (and it is convenient to deal with it at this stage), to the effect that section 1(1) as enacted was no more than a definition provision and did not confer or confirm any concrete rights. He sought to build on the use of the expression "by reference to" in the subsection, but I cannot see that that affects the matter. It is plain in my judgment that the subsection assumes, and therefore confirms, the continuing legality of the use of the yard and the pound alongside that of the metre and kilogram, without predominance of either system. Accordingly the regime of weights and measures under the 1985 Act would by force of the Metrication Directive as amended in 1989 be inconsistent with the European scheme, in relation to goods sold loose in bulk, as after 31 December 1999. |
"Section 8 of the [1985] Act is amended so as to make unlawful the use for trade of the pint, fluid ounce, pound or ounce except as supplementary indications of quantity or where a derogation which is reflected in section 8(2) permits their use as primary units. The pound (lb), for example, may be used either as a supplementary indication or, until 1 January 2000 (see article 3(2) of this Order), as a primary indication for the sale of goods loose from bulk. One of the most significant amendments made by this Order to the Act is made by article 4(2), the effect of which will be to prohibit, on and after 1 January 2000, the sale of fruit and vegetables loose from bulk by the pound. Another important amendment, made by article 3(2), preserves the use of the pint for the sale of draught beer and cider and for milk in a returnable bottle beyond that date." |
These amendments took effect on 1 October 1995. |
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"In section 8 for subsection (5) there shall be substituted the following-- |
" '(5) The preceding provisions have effect subject to--(a) subsection (5A) below ... |
" '(5A) Nothing in this section precludes the use for trade of any supplementary indication; and for this purpose any indication of quantity ("the imperial indication") is a supplementary indication if--(a) it is expressed in a unit of measurement other than a metric unit, (b) it accompanies an indication of quantity expressed in a metric unit ("the metric indication") and is not itself authorised for use in the circumstances as a primary indication of quantity, and (c) the metric indication is the more prominent, the imperial indication being, in particular, expressed in characters no larger than those of the metric indication.' " |
"1(1) [Subject to subsection (6) below,] the yard or the metre shall be the unit of measurement of length and the pound or the kilogram shall be the unit of measurement of mass by reference to which any measurement involving a measurement of length or mass shall be made in the United Kingdom; and--(a) the yard shall be 0.9144 metre exactly; (b) the pound shall be 0.453 592 37 kilogram exactly. |
"(2) Schedule 1 to this Act shall have effect for defining for the purposes of measurements falling to be made in the United Kingdom the units of measurement set out in that Schedule; and for the purposes of any measurement of weight falling to be so made, the weight of any thing may be expressed, by reference to the units of measurement set out in Part V of that Schedule, in the same terms as its mass. |
"(3) Subject to subsection (4) below, the Secretary of State may by order amend Schedule 1 to this Act by adding to or removing from Parts I to VI of that Schedule any unit of measurement of length, of area, of volume, of capacity, or of mass or weight, as the case may be. |
"[(4) Without prejudice to section 8(6)(b) below an order under subsection (3) above shall not remove the pint from Part IV of Schedule 1.] |
"(5) An order under subsection (3) above may contain such transitional or other supplemental or incidental provisions as appear to the Secretary of State expedient. |
"[(6) Subsection (1) above shall not have effect so as to authorise the use in the specified circumstances of--(a) the yard as a measurement of length, or (b) the pound as a measurement of mass, otherwise than in accordance with regulation 7 of the Units of Measurement Regulations 1986 (supplementary indications) or, in the case of the pound, in accordance with section 8(2)(f) below (which permits the pound to be used for the purposes of the sale of goods loose from bulk). |
"(7) In subsection (6) above 'the specified circumstances' has the same meaning as in the Units of Measurement Regulations 1986, that is to |
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say the circumstances specified in article 2(a) of Council Directive No 80/181/EEC as limited by the provisions of article 2(b) of that Directive.]" |
It is unnecessary to trace through the references to "specified circumstances" mentioned in section 1(7). The January 2000 amendment to section 1, effected as I have said by paragraph 7(2) of the 1994 Regulations, omitted the words after "(supplementary indications)" in section 1(6): that is, it omitted the reference to section 8(2)(f) and the use of the pound for the purposes of the sale of goods loose from bulk, which was permitted by section 8(2)(f). Section 8(2)(f) itself was inserted into the 1985 Act with effect from 1 October 1995 by paragraph 3(2) of the 1994 Amendment Order, but then repealed with effect from 1 January 2000 by paragraph 4(2) of the same Order, as indicated in the explanatory note which I have set out. |
"Where units of measurement are marked on non-automatic weighing machines first passed as fit for use for trade ... on or after 30 December 1992 they shall be marked in metric units or troy ounces, in full or by means of one of the following abbreviations or symbols only:--oz tr, t, kg, g, CM, ct, mg." |
I should say that troy ounces are a measure used only for precious metals. This amendment to paragraph 16 of the 1988 Regulations took effect on 1 January 2000. Its vires is stated in the preamble to the 1994 amending Regulations to consist in various provisions of the 1985 Act, including section 11(1). |
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Price marking |
"require that the price or charge to be indicated on or in relation to any goods or services shall be, or shall include, a price or charge expressed by reference to such unit or units of measurement as may be specified in the order". |
The Price Marking Order 1999 was made under the powers conferred by section 4 of the 1974 Act. Paragraph 1(2) defined "unit price" as "the final price, including VAT and all other taxes, for one kilogram, one litre, one metre, one square metre or one cubic metre of a product ..." Paragraph 5(1) of the 1999 Order read with paragraph 5(2) obliged traders to indicate to their customers the unit price as so defined in relation to any product sold from bulk. Breach of that requirement constituted a criminal offence by virtue of paragraph 5 of the Schedule to the 1974 Act. |
35 That is a sufficient recital of the material statutory provisions. |
The arguments |
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paragraph 31; (4) the Price Marking Order 1999, which I have described in paragraph 34. So far as the appeals raise any issues beyond the validity of these measures, I shall deal with them in due course. I turn to the arguments advanced to impugn these four subordinate measures. |
(1) Implied repeal |
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alongside those which depended on the 1994 Regulations because all were part of the same scheme, so that the former could not rationally stand without the latter. I think he would say the same of the provisions made by the Weights and Measures (Metrication Amendments) Regulations 1994 and by the Price Marking Order 1999 though these did not purport to make any amendments to the 1985 Act. I think this argument is a good one. Unless the earlier entitlement to use imperial and metric measures for purposes of trade without preference of one over the other is extinguished in favour a metric system (albeit allowing supplementary indicators), these other measures have no rational basis. But that extinguishment was effected, or purportedly effected, by the 1994 Regulations which are the target of the argument based on implied repeal. That argument is therefore central to these appeals. |
"The provisions of the Act or order by which the land is authorised to be acquired, or of any Act incorporated therewith, shall, in relation to the matters dealt with in this Act, have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect ..." |
"... I should certainly hold ... that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions ... if [the two statutes] are inconsistent to that extent"--viz so that they cannot stand together--"then the earlier Act is impliedly repealed by the later in accordance with the maxim 'Leges posteriores priores contrarias abrogant'." |
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"That is absolutely contrary to the constitutional position that Parliament can alter an Act previously passed, and it can do so by repealing in terms the previous Act ... and it can do it also in another way--namely, by enacting a provision which is clearly inconsistent with the previous Act." |
Maugham LJ said, at p 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. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature." |
"if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act." |
In my judgment this also represents the law of England; indeed the proposition stated is no more than a necessary concomitant of the implied repeal doctrine. |
"But I would answer that neither comity nor rule of international law can be invoked to prevent a sovereign state from taking what steps it thinks fit to protect its own revenue laws from gross abuse, or to save its own citizens from unjust discrimination in favour of foreigners. To demand that the plain words of the statute should be disregarded in order to do that very thing is an extravagance to which this House will not, I hope, give ear." |
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"It seems to me that once the Bill is passed by Parliament and becomes a statute, that will dispose of all this discussion about the Treaty. These courts will then have to abide by the statute without regard to the Treaty at all." |
This obiter dictum is not reflected in the judgments of their other Lordships. |
"Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act--with the intention of repudiating the Treaty or any provision in it--or intentionally of acting inconsistently with it--and says so in express terms--then I should have thought that it would be the duty of our courts to follow the statute of our Parliament." |
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"If a minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility." |
Section 10(3) makes like provision for the case where a declaration of incompatibility has been made under section 4(4) in relation to subordinate legislation whose incompatibility with Convention rights cannot be removed because of the terms of the main legislation which furnished the subordinate measure's vires. I accept at once that the intended operation of section 10(2) and (3) encompasses statutes yet to be passed; otherwise an essential part of the structure of the 1998 Act is consigned to the correction of historic violations. I understood Mr Shrimpton also to accept that that was so. But whether he did or not, it seems to me that his argument leads to the conclusion that we should be forced to construe section 10(2) and (3) as having effect for past statutes only, or else that any future Act of Parliament which the court is driven to conclude violates Convention rights must be taken to have impliedly repealed those subsections to the extent that they purported to confer power to amend the Act in question. |
First conclusion: no inconsistency for the purposes of implied repeal |
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event there is power in section 2(2) to amend a later statute such as the 1985 Act). But points of that kind do not rest on the doctrine of implied repeal. |
Further arguments on implied repeal |
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"So long as the United Kingdom remains a member state, Parliament exercises its sovereign powers within the altered framework that continuing membership entails. So long as the UK remains a member state, the pre-accession model of parliamentary sovereignty is of historical, but not actual, significance." |
See also paragraph 50 above. |
"the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals." |
"The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty. A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty's Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual." |
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"By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each member state of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardising the attainment of objectives of the Treaty ... The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Whenever the Treaty grants the states the right to act unilaterally, it does this by clear and precise provisions ... It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail ..." |
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Second conclusion: Community law cannot entrench itself |
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Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty. Accordingly there are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional doctrine of sovereignty. If is to be modified, it certainly cannot be done by the incorporation of external texts. The conditions of Parliament's legislative supremacy in the United Kingdom necessarily remain in the United Kingdom's hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle. |
Third conclusion: the European Communities Act 1972 is a constitutional statute which by force of the common law cannot be impliedly repealed |
"The provision that may be made under subsection (2) above includes ... any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of the section ..." |
"By virtue of section 2(4) of the 1972 Act Part II of the [Merchant Shipping Act 1988] is to be construed and take effect subject to directly enforceable Community rights ... This has precisely the same effect as if |
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a section were incorporated in Part II of the 1988 Act which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC." |
63 Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a |
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"Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of |
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Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy." |
67 Miss Sharpston relied also on what was said by Lord Keith of Kinkel in R v Secretary of State for Employment, Ex p Equal Opportunities Commission [1995] 1 AC 1, 26-27: |
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Final conclusion: four propositions |
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sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case. |
(2) No vires in section 2(2) of the 1972 Act in any event |
(a) Duke v Reliance Systems Ltd |
"Section 2(4) of the European Communities Act 1972 does not in my opinion enable or constrain a British court to distort the meaning of a British statute in order to enforce against an individual a Community directive which has no direct effect between individuals. Section 2(4) applies and only applies where Community provisions are directly applicable." |
I understood Mr Shrimpton to submit that since in these cases we are concerned only with the force of directives, and not directly applicable regulations, the effect of Lord Templeman's dictum is that we should hold that section 2(2) of the 1972 Act did not empower the minister to amend section 1 of the 1985 Act to give effect to the amended Metrication Directive, because in such a context section 2(2) is unsupported by the vital words in section 2(4), "The provision that may be made under subsection (2) above includes ... any such provision (of any such extent) as might be made by Act of Parliament ..." The point was advanced by Mr Shrimpton in the context of his submissions on implied repeal, but it seems to me that it should be treated as a free-standing argument. |
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It seems to me that wholly different considerations arise when one is considering the scope of the amending power given by section 2(2) and the opening words of section 2(4). There is a plain cross-reference between those opening words and section 2(2)(a): "[the minister may make provision] for the purpose of implementing any Community obligation of the United Kingdom ... or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised." In my judgment these words clearly contemplate provision being made to give effect to a directive; indeed directives are the paradigm case for the use of section 2(2)(a), precisely because regulations are directly applicable. |
(b) Henry VIII clauses are in principle only to be used to effect minor changes |
"Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinised, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach ..." |
But Parliament may delegate the power to amend primary legislation, and it is inescapable that by section 2(2) of the 1972 Act read with section 2(4) it has done so. |
(3) Assurances in Parliament: Henry VIII power only to be used to make minor changes |
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"I do not see any ambiguity or uncertainty ... in section 2. Reading the minister's statements in Hansard as a whole, it is clear that, while trying to give a measure of reassurance to Parliament, he was keeping open his options for the future. As he explained at one point: 'As for the future, our obligations will result in a continuing need to change the law to comply with non-direct provisions, and to supplement directly applicable provisions, and it is not possible in advance to specify the subjects which will have to be covered.' " |
The reference to "non-direct provisions" must be to directives. |
(4) Thoburn--unlawful prohibition of imperial weighing machines? |
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offer written submissions on the point, and the letter indicated that upon their receipt we would consider whether to convene a further hearing. Counsel very helpfully submitted further written arguments shortly before the Christmas vacation. It was at once apparent that there was nothing in the point. Miss Sharpston drew our attention to provisions contained in the applicable subordinate legislation whose effect is that in the relevant period while weighing machines must be calibrated in metric, the weight may also be given by way of a supplementary indication. There is, accordingly, no question of Mr Thoburn or anyone else being vexed with an arbitrary or capricious provision. The measure in question, which I need not set out, first saw life as paragraph 16A of the Weighing Equipment (Non-automatic Weighing Machines) Regulations 1988, added in 1994, and was replicated in successor regulations. |
(5) Hunt--abuse of process |
79 That is a hopeless argument. Mr Hunt's plight after putting away his imperial scales might have been relevant to sentence. It is not relevant to the integrity of the prosecution. |
(6) Article 10 of the European Convention on Human Rights |
Footnote |
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CRANE J |
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15 July. The Appeal Committee of the House of Lords (Lord Bingham of Cornhill, Lord Steyn and Lord Scott of Foscote) dismissed a petition by the defendant Thoburn for leave to appeal. |
Solicitors: McKenzie Bell, Sunderland; Percy Short & Cuthbert; Sproulls, Bodmin; Pegram Heron, Heathfield; Director of Administration, Sunderland City Council, Sunderland; Director of Legal Services, Hackney London Borough Council; County Solicitor, Cornwall County Council, Truro; Head of Legal Services, Sutton London Borough Council, Sutton. |
Reported by BENJAMIN URDANG ESQ, Barrister |