said that the Divisional Court's reconciliation of the two Acts was based on
projecting the power of the 1972 Act into the future. Mr Shrimpton acknowledged
that the 1972 Act referred to acts "past or to be passed", but said this did
not matter: "Parliament cannot do it", Mr Shrimpton said; when considering law,
the courts had to look at the later acts. If the later Act is clear, it must
take precedence, because Parliament cannot bind its successors. It was
impossible, Mr Shrimpton said, for a minister, using Henry VIII powers under a
1972 Act, to repeal a later statute.
The law lords asked
whether Mr Shrimpton accepted that the Factortame case limited the power of the
Queen in Parliament. Mr Shrimpton said that it did, since the Merchant Shipping
Act should have overridden the 1972 Act; however, Mr Shrimpton also pointed out
that implied repeal was not argued by the government.
accepted that, on the face of it, the 1972 Act sought to bind future
Parliaments. One of the law lords asked what he meant by "on the face of it".
Mr Shrimpton said that, while the 1972 purported to bind future Parliaments, no
Parliament could bind its successors, since Parliament's power was a present
power; it existed in the present.
Mr Shrimpton was
asked whether any other constitutional lawyer questioned Factortame. Mr
Shrimpton said none, aside from the present counsel. Mr Shrimpton said there
was a tendency to accept the decision on face value, without considering how it
was reached, and that the obvious defence, implied repeal, was not argued.
The law lords
expressed puzzlement over a point; in order to implement EC directives, the
government could use one of two routes, a regulation under the 1972 Act, or a
new Act of Parliament. Mr Shrimpton was asked if he was aware of the criteria?
Mr Shrimpton replied that one of the two routes could be chosen a case-by-case
basis. He said he thought it possible that the 1972 Act was used in the case of
metric conversion for political reasons, such as the possibility that the
government might not get the legislation through Parliament. Whatever the
reasons, the minister used the Henry VIII power to produce a wrecking
Mr Shrimpton said
the case of Factortame was not relevant because it did not address the
constitutional point. The metric martyr case was of enormous public importance;
to rule that Henry VIII powers could repeal a later act would generate a
constitutional crises. For these reasons, Mr Shrimpton said, the issues could
not be argued in half an hour before the Appeal Committee.
QC, acting for Sunderland City Council, said there was no inconsistency between
the two Acts in 1985 when the Weights and Measures Act was passed. This was
because the 1972 Act was not due to take effect until 2000. There was a future
conflict, she said, but not an internal conflict in 1985.
She told the law
lords: "If there is no inconsistency, there is no right to leave of appeal".
She added, "It is a case of interest to academics and constitutional lawyers
but not your honours' house".
further argued that since the 1985 Act was a consolidation act, it did not
presume to change the law.
There was also no
inconsistency, she said, between the general power of amendment in section 2(2)
of the European Communities Act 1972 and the later provision providing for the
use of certain weights and measures in section 1(1) of the 1985 Act. Ms
Sharpston said Parliament could delegate the power to amend primary legislation
and did so successfully in this case.
Ms Sharpston was
asked why the government passed the metric regulations in the way that it did.
Ms Sharpston said she had been asked the same question by Lord Justice Laws,
and could not answer. She was counsel for Sunderland City Council, not the
She said that
European Court judgements made it clear that any question as to the meaning or
effect of EC directives should be treated as a matter of law.
Ms Sharpston said
that statutes such as the 1972 European Communities Act and the 1988 Human
rights Act were vehicles to bring in obligations arising from international
treaties. It strained the rule of implied repeal, she said, for a consolidation
act to repeal a vehicle.
Mr Shrimpton made a
reply lasting around 5 or 10 minutes. He said there was very clearly a conflict
between the two Acts: he, if asked for advice, would say that Mr Thoburn could
sell in pounds and ounces, while Ms Sharpston would say Mr Thoburn could not.
Mr Shrimpton asked: "The 1985 Act says you can sell a pound of bananas and the
1972 Act says you cannot. How can there be no inconsistency?"
Mr Shrimpton said
that the "hierarchy of acts" was not in any of the prosecution submissions.
When Mr Shrimpton had said in the Divisional Court that there was no hierarchy
of acts, Lord Justice Laws replied, "We are not in the first year of law
school". Mr Shrimpton said that Lord Justice Laws' ruling was, nevertheless,
based on this concept. One of the Law Lords remarked to Mr Shrimpton that
perhaps they were in the third year of law school.
Mr Shrimpton said
that, if Lord Justice Laws' ruling was upheld, it would mean that a Court would
be free to depart from the words of an Act of Parliament. This would be a
"revolutionary decision" with awesome consequences. There would effectively be
a new constitution for Britain, yet there had been no revolution, no war, no
defeat, no occupation. Mr Shrimpton noted that Lord Justice Laws had said he
(Shrimpton) had argued the case with passion. Mr Shrimpton said he accepted
Mr Shrimpton said
that the New Zealand Court, whose legal system is closest to Britain, had ruled
that Human Rights legislation was not protected from implied repeal. All other
European Union countries had implied repeal. Mr Shrimpton asked that leave be
granted so that the arguments could be fully argued.
The Law Lords
retired to consider their decision and returned about fifteen minutes later at
approximately 12.15pm. In a statement lasting less than a minute, they said
that leave to appeal was refused. No reason was offered, except an indication
that they did not consider that the appeal would "give rise to points capable
of reasonable argument".
There were murmurs
of "shame" and "disgrace" from members of the public as they left the committee
After the hearing
Neil Herron, spokesman for the Metric Martyr Defence Fund, described the
decision as "outrageous". He said, "This is the death of democracy in this
country. The next step is to take this to the European Court of Human Rights".
After telephoning Mr Thoburn to inform him of the Law Lords decision, Mr Herron
said that Mr Thoburn would continue to defy the regulations in accordance with
British law. Mr Herron said that Mr Thoburn hoped that the politicians would
let mass murderers out of prison to make room for the honest, hard-working
greengrocers who were the backbone of the country.
have given away the democracy of this country to another authority", Mr Herron