In February 2002, the Appeal Court convicted traders of a criminal offence for selling loose foods in pounds and ounces. The key to understanding why this ruling is invalid lies in the fact that the arguments of the Prosecuting Counsel were not upheld.
Prosecuting Counsel, acting on behalf of Sunderland City Council, argued that, in passing the European Communities Act 1972 (ECA 1972), Britain had en-trenched EC law within the UK legal system and given it primacy over UK legislation. Thus, statutory in-struments passed under ECA 1972, requiring metric, took precedence over the Weights and Measures Act 1985 allowing lb/oz, even though the Weights and Measures Act 1985 (W&M 1985) was more recent. The High Court rejected this argument, saying that EC law could not take effect without UK statutes. Lord Justice Laws said in his judgment:
“The British Parliament…being sovereign, cannot abandon its sovereignty. Accordingly, there are no circumstances in which… [EC law can be elevated] to a status within…English domestic law to which it could not aspire by any route of English law itself”.
The High Court also rejected Prosecuting Counsel’s argument that W&M 1985 did not allow for the use of imperial units. For instance, Prosecuting Counsel said that Section 1 of W&M 1985 was only a defining section and did not confer the right to use the pound and yard. It was also argued that Section 1 referred to the pound and yard only as “supplementary indications” (ie not authorised for use in trade). These notions were dismissed by the High Court which ruled that W&M 1985,
“…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”.
The High Court therefore recognised two key points: Britain’s membership of the EC did not lift ECA 1972 above later Acts, and that W&M 1985 provided for the use of lb/oz. The combination of these two points should have meant that the Appeal by Steven Thoburn and other traders was successful.
Why then were the convictions upheld? They were upheld because Lord Justice Laws created a “hierarchy of Acts”, whereby ECA 1972 was “constitutional” and W&M 1985 “ordinary”. He said that ECA 1972 therefore took precedence over W&M 1985, even though W&M 1985 was more recent. Lord Justice Laws said that the authority for a hierarchy of Acts lay in Britain’s own common law:
“We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes … Ordinary statutes may be impliedly repealed. Constitutional statutes may not … I think the test could only be met by express words in the later statute … A constitutional statute can only be repealed … by unambiguous words on the face of the later statute”.
In other words, Lord Justice Laws said that ECA 1972 could not be repealed by implication (that is, by ECA 1972 requiring metric and the W&M 1985 allowing lb/oz). For W&M 1985 to repeal any part of ECA 1972, he said, it must refer to ECA 1972 expressly in its text. He declared imperial units illegal because, although accepting the intention of W&M 1985 to legalise them, it did not refer to ECA 1972 by name.
Uncertainty in the legality of the metric regulations continues because none of the authorities cited by Lord Justice Laws for a “hierarchy of Acts” was ever discussed in Court, since they were not among the arguments presented by Prosecuting Counsel. Consequently, traders were deprived of making representations on the very point on which the case turned. Had the Defence Counsel been able to make submissions on these authorities, he could have pointed out that none of them dealt with a conflict between earlier and later statutes. Indeed, in one of them (Withim 1998), the presiding judge was none other than Lord Justice Laws himself, who said that there was “no hierarchy of rights in English Law”.
By ruling in the way that he did, Lord Justice Laws acted unconstitutionally, since the effect of his judgment is to displace Parliament’s will as the means of determining the law. According to Lord Justice Laws, it is no longer enough for Parliament to declare its intention in an Act (in this case, “the pound or kilogram shall be the unit of measurement”). Parliament’s intention now depends on the inclusion of a clause that might say, “…this repeals the metric provisions of ECA 1972”.
Under British constitutional law, such a clause is superfluous; of course new Acts repeal earlier Acts. It is not necessary for Acts to say that they are intended to be law; Acts are the law – and the most recent Act of Parliament on choice of units says the pound or the kilogram, the yard or the metre, shall be the units of measurement for use in the United Kingdom. Until Parliament passes a new Act to repeal or amend W&M 1985, BWMA says pounds and ounces remain lawful.