Case Facts
This case comprised conjoined appeals to the Divisional Court by way of case stated. Five market traders were prosecuted by their respective local authorities for offences arising from their refusal to comply with metrication requirements. The five named appellants were: Steven Thoburn (prosecuted by Sunderland City Council), Colin Hunt (Hackney London Borough Council), Julian Harman (Cornwall County Council), John Dove (Sutton London Borough Council), and Peter Collins (Sutton London Borough Council). Four of the appellants appealed by way of case stated against their criminal convictions. The hearing took place on 20–22 November 2001, with judgement delivered on 18 February 2002.
The offences were of two kinds. The weights offence arose from the appellants' failure to use metric weights as the primary indicator for the sale of goods loose from bulk. The price marking offence arose from their failure to display goods by reference to a kilogram weight. The appellants were, in common parlance, the "metric martyrs" — traders who insisted on selling goods using imperial measures such as pounds and ounces rather than the metric equivalents mandated by subordinate legislation.
The legislative backdrop was as follows. The Weights and Measures Act 1985, as originally enacted, was a consolidating statute. s 1 of the 1985 Act, as originally enacted, was in identical terms to s 1(1) of the Weights and Measures Act 1963, and permitted the use of both imperial and metric measures for trade without preferring one over the other — described in the judgement as "the earlier entitlement." However, the Units of Measurement Regulations 1994 (SI 1994/2867) — made under s 2(2) European Communities Act 1972 — purportedly extinguished that earlier entitlement by giving preference to the metric system, thereby amending s 1 of the 1985 Act.
Section 2(2) of the European Communities Act 1972, read together with s 2(4), conferred a so-called "Henry VIII power" — that is, a power contained in primary legislation to amend primary legislation by means of subordinate legislation. The Regulations were made pursuant to this power in order to implement European Community directives on metrication.
The appellants advanced two core arguments. First, they contended that s 1 of the 1985 Act had impliedly repealed s 2(2) of the 1972 Act to the extent that the latter empowered the making of subordinate legislation inconsistent with s 1 of the 1985 Act. Second, they argued that a Henry VIII power can only lawfully be exercised in relation to Acts already on the statute book at the time the power was enacted, and could not validly extend to future legislation such as the 1985 Act.
Held
The appeals were dismissed. The court held that s 1 of the 1985 Act had not impliedly repealed s 2(2) of the 1972 Act, and that the Units of Measurement Regulations 1994 had been validly made under that provision. The vires of the 1994 Regulations was accordingly upheld.
On the first argument, the court reasoned that there was no relevant inconsistency between a provision conferring a Henry VIII power to amend future legislation and the terms of any such future legislation. A later statute simply cannot be inconsistent with an earlier provision that was specifically designed to authorise amendment of later statutes. The doctrine of parliamentary sovereignty would itself be undermined if Parliament could not validly enact a Henry VIII power extending to legislation enacted after the power was conferred.
The court reinforced this conclusion by observing that if the law had not been consolidated — that is, if s 1 of the Weights and Measures Act 1963 had remained on the statute book rather than being re-enacted in the 1985 Act — amendment by the Henry VIII power in s 2(2) of the 1972 Act would unquestionably have been effective. The law of the constitution could not, as the judgement put it, be "botched by such random consequences" arising from the mere fact of consolidation.
The court also held that the European Communities Act 1972 is a "constitutional statute" by force of the common law, and that it cannot be impliedly repealed by later ordinary legislation. The cases of Vauxhall Estates v Liverpool Corporation [1932] and Ellen Street Estates v Minister of Health [1934], which had been relied upon to support the traditional view that Parliament cannot bind its successors, were considered and distinguished: those decisions concerned the ordinary doctrine of implied repeal as between equivalent statutes and did not address the distinct position of constitutional statutes.
Ratio Decidendi
The ratio of the case rests on two closely related but distinct holdings.
The first is that a Henry VIII power enacted in primary legislation — specifically, the power conferred by s 2(2) European Communities Act 1972 — is capable of extending to Acts of Parliament enacted after the conferral of that power. A later Act that is silent on the matter does not, merely by its enactment, impliedly repeal or restrict that earlier power. There was no genuine inconsistency between s 2(2) of the 1972 Act and s 1 Weights and Measures Act 1985 that could trigger the doctrine of implied repeal.
The second, and more constitutionally significant, holding is that the ordinary doctrine of implied repeal does not apply to constitutional statutes. The court drew a fundamental distinction between two categories of primary legislation: ordinary statutes, which may be impliedly repealed by later inconsistent legislation; and constitutional statutes, which cannot. A constitutional statute may only be repealed expressly — by clear and unambiguous language in a later Act of Parliament — and not by implication from the general or incidental provisions of later ordinary legislation. The European Communities Act 1972 fell into the constitutional category, with the consequence that the Units of Measurement Regulations 1994 remained intra vires.
Obiter Dicta
The court made several important observations beyond those strictly necessary for the disposal of the appeals.
First, the court offered a definition of a "constitutional statute" as a statute which conditions the legal relationship between citizen and state in some general, overarching manner, or which enlarges or diminishes the scope of what are now regarded as fundamental constitutional rights. Examples given included Magna Carta, the Bill of Rights 1689, the Act of Union, and the Human Rights Act 1998, as well as the European Communities Act 1972. This category is defined by the common law, not by parliamentary designation.
Second, and of considerable constitutional importance, the court addressed the theoretical basis upon which European Community law takes priority over inconsistent domestic law in the United Kingdom. Building upon the earlier decisions in Factortame (No 2) [1991] — which had conclusively established that a court may disapply an Act of Parliament inconsistent with Community law — the court made clear that this primacy is not derived from European law itself, and certainly not from any self-executing claim by the institutions of the European Union. Rather, it is the common law of England and Wales that gives EU law its priority in the domestic legal order. The modification of the traditional doctrine of parliamentary sovereignty has been effected by the common law, wholly consistently with constitutional principle.
Third, and following from that reasoning, the court stated that the legislative and judicial institutions of the European Union cannot set limits to the power of Parliament to make laws regulating the legal relationship between the Union and the United Kingdom. Parliament cannot abandon its sovereignty. The conditions of Parliament's legislative supremacy necessarily remain in the hands of the United Kingdom, and Parliament retains the constitutional capacity — through express legislation — to alter or abrogate even the most fundamental rules of the domestic legal order, including the priority accorded to European Community law.