Parliamentary Sovereignty and the Common Law
Note: I am republishing this, because the case in question is under discussion in another thread. SIG
The “Metric Martyrs” and the Constitution
On Monday the 18th February 2002, judgment was given in the Court of Appeal on the “Metric Martyrs” case (Thoburn v Sunderland City Council. These were appeals from four men who had in different ways been told by lower courts that it was no longer legal for them to use the English system of weights and measures for any purpose of trade. The grounds of their appeal were that the relevant laws had been made further to powers contained in the European Communities Act 1972, whereas it appeared that their right to continued use of the English system had been protected by the Weights and Measures Act 1985. According to the doctrine of implied repeal, an earlier Act cannot be used to amend or repeal a later Act. Instead, where any conflict arises between Acts of Parliament that cannot be smoothed by judicial interpretation, the later one always takes precedence: leges posteriores priores contrarias abrogant .
What made this case so important was that it was brought to clarify the constitutional status of our membership of the European Union. Either the Judges could apply the doctrine of implied repeal, in which case, our membership of the European Union was compromised to whatever degree the European Communities Act had been repealed, or they could announce that Parliament was no longer sovereign, and that we were now unambiguously under the rule of a centralising, Roman Law despotism based outside this country. In the judgment given last Monday, the four men lost their case. According to Lord Justice Laws and Mr Justice Crane, the 1972 Act was protected against implied repeal by the 1985 Act, and the English system of weights and measures has been legally abolished to the degree stated in the disputed laws.
Now, looking at the superficial aspects of the case, it is a defeat. As a conservative, I deplore the legal suppression of weights and measures which are an integral part of our culture. Whatever its merits considered purely in themselves—and these are probably not so great as is usually claimed—the metric system is an alien thing. Its imposition cuts us off from part of our history, and makes it harder for us to enjoy that intimate communion with the past that is part of any nation’s strength and cohesion. As a libertarian, I deplore the imposition of anything. If greengrocers want to sell bananas by the pound or the kilogramme—or indeed by the ancient Athenian mina—that is a matter for them and their customers, not for the authorities. However, if we look beneath the surface, we can see that the judgment was not so much a defeat as a great if conditional victory for both conservatives and libertarians. For while it would not have been politically conceivable for the Judges to strike down any part of the European Communities Act, they did preserve parliamentary sovereignty to the extent that a majority of the House of Commons will be able in due course to repeal that Act by positive legislation; and that is, let us face reality, how we shall eventually withdraw from the European Union—not by some clever legalistic trick, but by full public debate followed by parliamentary repeal. And of equally great importance for us, when the Judges squared the apparent circle given to them, they did so by reviving the ancient doctrine of fundamental law.
This is a mediaeval doctrine that last flourished in the rather strange legal soil of the 17th century. Its most famous statement is in Lord Chief Justice Coke’s judgment in the case of Dr Bonham (1610). Bonham had been fined for practising medicine without a licence from the Royal College of Physicians. The charter under which he was fined had been confirmed by Act of Parliament. In giving judgment for Bonham, Coke CJ commented:
And it appears in our books that in many cases the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void (8 Coke’s Reports, 117-18).
By the end of that century, though, the whole notion of a fundamental law that could be used to judge the validity of Acts of Parliament was in decline. In the American colonies, the notion retained its hold among the lawyers, and is preserved in the Constitution and Bill of Rights. But in this country, the very different notion emerged of the absolute legislative sovereignty of the Crown in Parliament. Our rulers were restrained by their sense of right and wrong—or more often by their caution—in exercising power, but were under no legal restraint so long as they could rely on Parliament to pass whatever Acts they wanted. Parliament was sovereign. Its Acts could be interpreted by the courts—and frequently have been into senses that no Member of Parliament might have recognised in the division lobbies—but could not be called in question.
The doctrine as a whole was elaborated to its full logical conclusions by A.V. Dicey in his Law of the Constitution (1885). It was fully accepted by the courts. “For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms” said Lord Dunedin in 1906 (Mortensen v Peters, 8 F.(J.C.), 93,100).
The only limitation of sovereignty was its protection. It was held that no Parliament could bind itself. Parliament could do anything, except preserve its own Acts from repeal. An Act from the time of Henry VII, for example, states that it cannot be repealed. An early 19th century annotator of the State Trials refers to this as a void provision. A later Act would always override an earlier one—and do so regardless of whether that had been the intention of Parliament. Repeal could be intended or simply implied. “The Legislature cannot, according to our constitution” said Lord Justice Maugham, “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” (Ellen Street Estates Ltd v Minister of Health  1 King’s Bench Reports , 753. 14.).
Now, suddenly, the notion of fundamental law has been pulled out of the legal grave in which it had been rotting for three hundred years, and declared part of the law of our Constitution. In one sense, it was the only way out of the paradox that the “Metric Martyrs” case had apparently raised. By announcing that there was a “hierarchy of Acts of Parliament” – “ordinary” and above them “constitutional”, the Judges were able to save the European Communities Act from implied repeal. Undoubtedly, they emphasised, European Union law is supreme in this country—but only to the extent given by the European Communities Act, which can be repealed should Parliament explicitly decide to do. Even so, short of explicit repeal, it is immune from any implied repeal. But in another sense, the judgment is only an extension of the growing impatience that Judges have felt for a very long time with the constraints imposed on them by the doctrine of parliamentary sovereignty. And, in spite of the status given for the moment to the European Communities Act, these are constraints that should be regarded with impatience by everyone who values freedom in this country.
“The sovereignty of the Crown in Parliament” is a nice set of words. The phrase rolls off the tongue and carries the mind back to earlier ages in our history. But the phrase no longer describes what is at all a desirable state of affairs. We are ruled by people who get an almost sexual thrill from messing up our lives. Because they run the two main parties, they are able to pack the House of Commons with a combination of sheep who would vote black white and white black if ordered, and of weaklings who know that something is wrong, but are controlled by bribes and blackmail. Every so often, a few decent people get elected. But that is because the control is not yet perfect; and its main effect, sadly, is to keep alive in some minds the delusion that parliamentary democracy still actually exists. The general result is tyranny mitigated by recollections of a better time.
The Judges have been worried by this for generations. According to Lord Wright in 1942,
Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament… is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers…, the only question is what is the precise extent of the powers given (Liversidge v Anderson , Appeal Cases, 106).
Since then, things have grown worse. Bad laws pour out in a continual stream. A well funded interest group only has to demand, or a media campaign to start, and the politicians reach for their legislative hammer. In the 1960s, the insurance companies complained about the level of awards in civil cases where they were known to stand behind a defendant; and so the politicians virtually abolished the right to trial by jury in the civil courts. In 1987, there were complaints when some defendants in a criminal case pooled their right of peremptory challenge to secure a more sympathetic jury; and so the politicians abolished that right. Around the same time, the authorities wanted to raise the conviction rate or financial crimes; and so the politicians created the Serious Fraud Office, and gave it the right to compel self-incrimination. In 1991, a few children were bitten by dogs; and so the politicians brought in a law that almost everyone now regards as mad. Arguments about the rule of law drew at best a blank stare, at worst an exultant sneer.
Nor is it just that Parliament is churning out bad laws—though many are very bad. It is that Parliament is churning out thousands of pages of new law every year, supplemented by thousands more of statutory instruments. No one has read or can read all of these. No one is co-ordinating the process of their manufacture. Quite often, no one knows what the laws are on an issue from one day to another. Not surprisingly, they frequently contradict each other. This is what led to the challenge to the metrication laws. The Weights and Measures Act does contradict the European Communities Act. No one intended this to happen. No one noticed it had happened for about 15 years. But it did happen.
Now, the politicians are being brought under control. Let me quote from the relevant sections of the judgment:
In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental…. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the [Human Rights Act 1998], the Scotland Act 1998 and the Government of Wales Act 1998. The [European Communities Act] clearly belongs in this family…. The ECA is, by force of the common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual not imputed, constructive or presumed intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not 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 pursuant to Pepper v Hart  AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.
This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.
Some people, I know, are angry that the European Communities Act has been given this special status. However, its protection against implied repeal comes not—as the Sunderland City Council lawyers argued—because on entering the European Union, we accepted a new legal order in which our own constitutional arrangements were reduced to the status of a town council, but because the Common Law now recognises a whole class of special Acts of which the European Communities Act is presently one. If we ever repeal the European Communities Act by explicit Act of Parliament, it will drop out of this special class, but the special class will remain.
And we can repeal the European Communities Act. That much is now certain. The various judgments in the Factortame legislation left the position of European Union law highly ambiguous—was it or Parliament supreme?. This judgment make it clear that the laws of the European Union enjoy a borrowed primacy in England. Parliament may have chosen to indulge a foreign authority, but cannot subordinate itself to it: “there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it.”
This is not the outcome that the supporters of the “Metric Martyrs” were hoping for. It is not an outcome, I think, that anyone was expecting. The point of fundamental law was not raised in any of the hearings, and it is highly unusual for Judges to go beyond the points raised in a case except for giving obiter dicta , which have no binding force as precedent. But it is a not a judgment that the Government was hoping for. Its general implications have yet to be revealed. But it seems reasonable that a vast mass of bad laws can now be set aside as inconsistent with fundamental laws that they have not explicitly repealed. Therefore, the sections of the Road Traffic Act 1982, that allow the Police to impose fines on motorists without going to court, may be inconsistent with the guarantee of due process in Magna Carta. The various Firearms Acts—especially the most recent ones, which are intended to criminalise rather than regulate the possession of guns—may be inconsistent with the Bill of Rights. The Government’s proposed Confiscation Agency, which will import the American doctrine of civil asset forfeiture, will require the explicit repeal of Magna Carta and parts of the Human Rights Act. At a stroke, the Judges have put the politicians under a restraint that may be as severe in practice as that imposed by the Supreme Court in America. It means that they can carry on their game of stealing our freedoms—but they must do so in the open, by spelling out what they are doing in words that cannot be ignored by the courts. I have no doubt that if they had known in advance the outcome of this case, the authorities would quietly have connived at breaches of their metrication laws.
We have lost the right to use our traditional weights and measures. But we may have gained the vast benefit of living again under a Constitution that protects our fundamental rights. I feel sorry for the four men who have taken on the considerable legal costs of getting this case into court, and I hope that the public appeal will be sufficient to pay these costs. But it was, most emphatically, a case worth getting into court. It has given us, I repeat, a great and unexpected, if conditional, victory.